2006Do8555 Violation of the Act on the Punishment of Violent Acts, etc.(Group-Weapon, etc., Bodily Injury)

Justices  Jeon Soo-ahn(Presiding Justice), Koh Hyun-chul, Yang Seung-tae(Justice in charge), Kim Ji-hyung

Main Issue
Whether it is allowed to impose a sentence of actual imprisonment on part of one punishment of restricting physical freedom and declare a suspension on the execution of the remaining part of the punishment(negative)

Summary of Decision
Even though Article 62 (1) of the Criminal Act stipulates that the execution of the sentence may be suspended, since Paragraph 2 of the same Article stipulates that the execution of the sentence may be "partly" suspended only if punishments are imposed concurrently, it should be interpreted as a provision related to the entirety of one punishment from the perspective of systematic interpretation of the provision. In addition, as it is necessary to clarify the date, procedure and method of the term as well as the condition and effect of suspension as to the punishment of restricting physical freedom, there need be a separate provision for its recognition. Thus, it is not allowed to impose a sentence of actual imprisonment on part of the punishment of restricting physical freedom and declare a suspension on the execution of the remaining part of the punishment.

Reference Provisions

 * 1) Article 62(1), 62(2) of the Criminal Act


 * Article 62 of the Criminal Act (Requisites for Suspension of Execution of Sentence)


 * (1) In cases where a sentence of imprisonment or imprisonment without prison labor for not more than three years is to be imposed and there are extenuating circumstances taking account of the provision of Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years: Provided, That this shall not apply to a sentence made to the crime committed during the duration of three years from the time when the judgement sentencing an imprisonment without prison labor or a heavier punishment has become final to the time when the execution thereof is terminated or exempted. 


 * (2) When punishments are to be imposed concurrently, execution of a part of the punishment may be suspended separately.


 * Defendant: Defendant


 * Appellant: Defendant and Prosecutor


 * Counsel: Attorney Kim Young-chul


 * Judgment of the court below: Seoul Eastern District Court 2006No892 delivered on Nov. 9, 2006

Disposition
The judgment of the court below shall be reversed, and the case shall be remanded to the Panel Division of the Seoul Eastern District Court.

Reasoning
This is to examine the Grounds for Appeal.

Article 62 (1) of the Criminal Act stipulates that in cases where a sentence of imprisonment or imprisonment without prison labor for not more than three years is to be imposed and there are extenuating circumstances taking account of the provision of Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years. Paragraph 2 of the same Article stipulates that "in the event that punishments are imposed concurrently, a "part" of the sentence may be suspended. So, even though Article 62(1) of the Criminal Act stipulates that the execution of a "sentence" may be suspended, since Paragraph 2 of the same Article stipulates that a sentence may be "partly" suspended only when it is imposed concurrently, it shall be interpreted as a provision related to the entirety of one punishment from the perspective of systematic interpretation of the provision

In addition, as it is necessary to clarify the date, procedure and method of the term as well as the condition and effect of suspension on part of the punishment, there need be a separate provision for its recognition.

Unlike the above, the court below reasoned that Article 62 (1) of the Criminal Act recognizes partial suspension, and cited the Supreme Court Decision 2000Do4637 delivered on February 26, 2002 to sentence the defendant with a partial suspension of one sentence, but the above decision amounts to recognizing a suspension of executing one punishment when two punishments restricting freedom are imposed against each crime in the relation of concurrent crimes as stipulated in Article 37 of the Criminal Act, so it is not appropriate to rely on it in this case where it is about a suspension of the execution of part of one punishment restricting freedom.

Therefore, the decision of the court below is erroneous in the misapplication of the legal principle about the suspension of execution, which affected the conclusion of judgment, so the argument in the Grounds for Appeal by the prosecutor that points out the above has merit.

Meanwhile, as the Grounds for Appeal submitted by the defendant does not contain arguments other than a claim to maintain the decision by the court below, it shall not be a legitimate reason for appeal, and as the supplement to the Grounds for Appeal submitted by the state appointed attorney after the deadline of the submission of the Grounds for Appeal shall not be deemed to supplement the Grounds for Appeal, the Grounds for Appeal submitted by the defendant shall not be examined.

Therefore, the decision of the court below shall be reversed, and the case shall be returned to the court below for another deliberation and judgment, and this decision is delivered with the assent of all justices involved.

Source

 * Supreme Court Decision 2006Do8555 Delivered on February 22, 2007, Supreme Court Library of Korea

2006도8555