In a case where the punishment of imprisonment and the fine are imposed concurrently pursuant to Article 38(1)3 of the Criminal Act, whether it is illegal to reduce the amount of imprisonment only (negative)

In a case where both punishment and a fine are imposed in accordance with Article 38(1)3 of the Criminal Act, there may be differences in the circumstances of each crime, and thus, it cannot be deemed unlawful on the ground that the punishment is limited to imprisonment and the fine is not subject to discretionary mitigation.

Articles 38(1)3 and 53 of the Criminal Act

Defendant

Defendant

Attorney Nam-woo

Daejeon District Court Decision 2005No2765 Decided January 27, 2006

The appeal is dismissed. 40 days out of detention days after the appeal shall be included in the original sentence of imprisonment.

The defendant and public defender's grounds of appeal are also examined.

1. Determination on the assertion of unfair sentencing

The assertion that the punishment is too heavy in this case where imprisonment with prison labor and a fine for less than 10 years is imposed cannot be a legitimate ground for appeal (Article 383 of the Criminal Procedure Act). The argument in the grounds for appeal on this cannot be accepted.

2. Judgment on the misapprehension of legal principles as to discretionary mitigation

Since it is apparent that the Defendant was unable to submit only an unreasonable sentencing as a ground for appeal against the judgment of the court of first instance, the Defendant cannot serve as a ground for appeal against the violation of statutes (see, e.g., Supreme Court Decision 94Do2134, Feb. 3, 1995).

Furthermore, in a case where both punishment of imprisonment and a fine are imposed in accordance with Article 38(1)3 of the Criminal Act, there may be differences in the circumstances of each crime, and thus, it cannot be deemed unlawful on the ground that the punishment of imprisonment with prison labor is subject to discretionary mitigation and fine is not subject to discretionary mitigation.

In light of the above legal principles, the court below's decision of the court of first instance, which maintained the judgment of the court of first instance, which sentenced discretionary mitigation only to imprisonment with prison labor, cannot be deemed unlawful, concurrently with imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes as stated in the judgment of the defendant and a fine for a violation of the Road Traffic Act as stated in the judgment of the court below. The ground of appeal concerning this cannot be accepted (see Supreme Court Decision 76Do2012, Sept. 14, 1976; Supreme Court Decision 76Do2012, Sept.

3. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the principal sentence of imprisonment. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)