2007Do768 Violation of the Punishment of Violence, etc. Act (Nighttime joint violence, Deadly Weapon, etc. Bodily Injury)

by the Supreme Court of Korea

Justices Kim Nung-hwan (Presiding Justice), Park Si-hwan, Park Ill Hoan (Presiding Justice)

Main Issues

1. Whether a sentence of probation of which period has not yet been completed constitutes a ground of disqualification from probation as provided under the conditional provision of Article 62(1) of the former Criminal Act (affirmative in principle)
2. Interpretations of grounds of disqualification from probation as provided under the conditional provision of Article 62(1) of the former Criminal Act
3. In the matter of interpreting Article 62 of the current Criminal Act, if a crime committed during the period of probation was indicted and if the probation period comes to an end during the proceeding, whether probation as to such crime can be sentenced again
4. The case holding that in case where a sentence as to a crime committed under the former Criminal Act is rendered, the former Criminal Act cannot be deemed as more favorable to the defendant since the defendant is disqualified from probation either under Article 62 of the former Criminal Act or under Article 62 of the current Criminal Act if the crime was committed during the period of probation and the decision of revoking the probation was finalized prior to the completion of probation period

Summary of Decision

1. Under the conditional provision of Article 62 (1) of the former Criminal Act (amended by Act No. 7427 of March 31, 2005), the meaning of "a person who had been sentenced to a punishment of imprisonment or higher, and as to the sentence, less than five (5) years had passed since the completion of the enforcement of the sentence or since the exemption from its enforcement" refers not only to a case where less than five (5) years has passed since the completion of the enforcement of the prison sentence or since the exemption from the enforcement, but also a case where probation is sentenced and the probation period has not expired, unless there are special circumstances (limited to a special case where several concurrent crimes in accordance with Article 37 of the Criminal Act were prosecuted one after another, which were tried separately and one case results in the sentence of probation which was later finalized, and if several concurrent crimes had been tried at the same time during the same proceedings, those would have all been sentenced with probation).
2. According to the purport of the provision in Article 62 (1) of the former Criminal Act (amended by Act No. 7427 of March 31, 2005) and the above legal reasoning, if the defendant is sentenced to three (3) years or less in prison or a sentence of imprisonment, probation could be sentenced if there are reasons to be taken into consideration along with the provisions in Article 51 of the Criminal Act, but in principle, if there is a past history of receiving a sentence of imprisonment or higher, probation shall not be sentenced, provided, however, that even if there is a past history of receiving a sentence of imprisonment or higher, if such past history is about the sentence of probation on the punishment and the probation period has already passed without becoming invalid or cancelled, or if such past history is about the sentence of imprisonment and five (5) years have passed since the completion of the enforcement of the sentence or since the exemption of the enforcement, probation shall be sentenced again.
3. In sentencing a punishment for a crime committed during probation, a case that constitutes the conditional provision stipulated in Article 62 (1) of the current Criminal Act that provides for the reason for disqualification from probation shall be limited to a case where the probation has already become invalid or cancelled, or a case where the probation period has not been completed by the time the sentence was delivered so the sentence still remains valid, while a case where the probation period has passed without losing validity or being revoked shall not be included in the above condition, therefore, even if a crime is committed during probation, if the probation period has passed without losing validity or being revoked, another sentence of probation shall be delivered.
4. The case holding that where a sentence as to a crime committed under the former Criminal Act (amended by Act No. 7427 of the former Criminal Act) is rendered, the former Criminal Act cannot be deemed as more favorable to the defendant since the defendant is disqualified from probation either under Article 62 of the former Criminal Act or under Article 62 of the current Criminal Act if the crime was committed during the period of probation and the decision of revoking the probation was finalized prior to the completion of probation period

Reference Provisions

1. Article 37 of the Criminal Act, Article 62 (1) of the former Criminal Act (amended by Act No. 7427 of March 31, 2005)
2. Article 51 of the Criminal Act, Article 62 (1) of the former Criminal Act (amended by Act No. 7427 of March 31, 2005)
3. Articles 62(1) and 65 of the Criminal Act
4. Articles 62 (1) and 64(2) of the Criminal Act, ADDENDA of the Criminal Act, Article 62 (1) of the former Criminal Act (amended by Act No. 7427 of March 31, 2005)

Article 37 of the Criminal Act (Concurrent Crimes)

Several crimes for which judgment has not become final, or a crime for which judgment to punish with an imprisonment without prison labor or a heavier punishment has become final and the crimes committed before the said final judgment shall be regarded as concurrent crimes. <Amended by Act No. 7077, Jan. 20, 2004>

Article 51 of the Criminal Act (General Principles for Determination of Punishment)

In determining punishment, the following shall be taken into consideration:

1. The age, character and conduct, intelligence and environment of the offender;
2. Offender's relation to the victim;
3. The motive for the commission of the crime, the means and the result; and
4. Circumstances after the commission of the crime.

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 judgment sentencing an imprisonment without prison labor or a heavier punishment has become final to the time when the execution thereof is terminated or exempted.

Article 64 of the Criminal Act (Revocation of Suspension of Execution of Sentence)

(2) If a person who is subject to the stay of execution by which the probation, social service or taking lecture is ordered, under Article 62-2, violates the matters to be observed or the order, and the degree of such violation is grave, the sentence of the stay of execution may be revoked.

Article 65 of the Criminal Act (Effect of Suspension of Execution of Sentence)

After a suspension of sentence is rendered, and the term of suspension has fully elapsed without the sentence being nullified or revoked, the sentence shall lose its validity.

ADDENDA of the Criminal Act <Act No. 7623, Jul. 29, 2005>

(2) (Application Examples) This Act shall apply also to the crimes committed prior to the enforcement of this Act: Provided, That the same shall not apply in case where the application of the former provisions is more favorable to the perpetrator.

Article 62 (1) of the former Criminal Act (The elements of probation)

(1) An execution of a sentence of between more than 1 year and less that 5 years may be delayed where an attenuating circumstance exists in consideration of circumstances under Article 51 in case where an imprisonment or detainment of less than 3 years is sentenced; with the exception that a person who had been sentenced to a punishment of imprisonment or higher, and as to the sentence, less than five (5) years had passed since the completion of the enforcement of the sentence or since the exemption from its enforcement.

Reference Cases

1. Supreme Court Full Bench Decision 87D02365 delivered on Sep. 12, 1989(Gong1999, 1422), Supreme Court Decision 2001Do5891 delivered on Feb. 2, 2002(Gong2002Sang, 831)/[3] Supreme Court Decision 2006Do6196 delivered on Feb. 8, 2007(Gong2007Sang, 461)

• Defendant: Defendant

• Appellant: Defendant

• Counsel: Attorney Lee Sung-sub and 2 others

• Judgment of the court below: Suwon District Court 2006No2536 delivered on Jan. 4, 207

Disposition

The appeal is dismissed.

Reasoning

This is to examine each of the Grounds for Appeal by the defendant's legal counsel and the court-appointed attorney.

1. Addenda (2) of the current Criminal Act (amended by Act No. 7427 of March 31, 2005, hereinafter referred to the same) stipulates, "This Act shall apply to crimes committed before the enactment of this Act, provided, however, that it shall not apply to a case if it is in favor of the perpetrator to apply the former provisions," and each of the acts of crime in this case by the defendant was committed on August 26, 2004 and on November 16 of the same year, so if the grounds for disqualification from probation differ depending on which provision applies, i.e., the provisions of the Criminal Act that were current at time of each of the acts of crime in this case (revised on January 20, 2004 into Act Number 7077, hereinafter referred to as the "former Criminal Act") or the provisions of the current Criminal Act, the provisions shall be looked into and the provisions that are in favor of the defendant shall be applied.

2. A. According to the Record, the defendant was sentenced on September 24, 2003 to one (1) year and six (6) months in prison and three (3) years of probation for the crime of violating the Punishment of Violence, etc. Act (nighttime, joint violence), which was finalized on October 2 of the same year, and each of the acts of crime in this case was committed on August 26, 2004 and on November 16 of the same year, which were during the probation period, and a decision to revoke the above probation was finalized on April 18, 2006, which was before the above probation ended and before the decision by the first court in this case was made, for violating the probation regulations.

B. If the former Criminal Act applies

Under the conditional provision of Article 62 (1) of the former Criminal Act, the meaning of "a person who had been sentenced to a punishment of imprisonment or higher, and as to the sentence, less than five (5) years had passed since the completion of the enforcement of the sentence or since the exemption from its enforcement" refers not only to a case where less than five (5) years has passed since the completion of the enforcement of the prison sentence or since the exemption from the enforcement, but also a case where probation is sentenced and the probation period has not expired, unless there are special circumstances (limited to a special case where several concurrent crimes in accordance with Article 37 of the Criminal Act were prosecuted one after another, which were tried separately and one case results in the sentence of probation which was later finalized, and if several concurrent crimes had been tried at the same time during the same proceedings, those would have all been sentenced with probation) (refer to Supreme Court Full Bench Decision 87Do2365 Delivered on September 12, 1989, Supreme Court Decision 2001Do5891 Delivered on February 22, 2002, et al).

According to the purport of the provision in Article 62 (1) of the former Criminal Act and the above legal reasoning, if the defendant is sentenced to three (3) years or less in prison or a sentence of imprisonment, probation could be sentenced if there are reasons to be taken into consideration along with the provisions in Article 51 of the Criminal Act, but in principle, if there is a past history of receiving a sentence of imprisonment or higher, probation shall not be sentenced, provided, however, that even if there is a past history of receiving a sentence of imprisonment or higher, if such past history is about the sentence of probation on the punishment and the probation period has already passed without becoming invalid or cancelled, or if such past history is about the sentence of imprisonment and five (5) years have passed since the completion of the enforcement of the sentence or since the exemption of the enforcement, probation shall be sentenced again.

According to the above legal reasoning and the Record, in this case, in sentencing punishment concerning the crimes in this case committed by the defendant during the probation period as seen above, the defendant does not belong to any of the following cases: the probation period has already passed without becoming invalid or cancelled, or the probation has been canceled and five (5) years have passed since the completion of the enforcement of the sentence or since the exemption from the enforcement, which shall constitute a reason for disqualification from probation as stipulated in Article 62 (1) of the former Criminal Act, therefore probation of the sentence shall not be declared as to the defendant under the provisions in the former Criminal Act.

Unlike the above, the argument in the Grounds for Appeal purports that the defendant does not have a reason for disqualification from probation as stipulated in Article 62 (1) of the former Criminal Act because he is currently serving the sentence, on the premise of an arbitrary opinion that the reason for disqualification from probation as stipulated in Article 62 (1) of the former Criminal Act shall only apply to a person who was sentenced to imprisonment or higher and who has either "completed the enforcement or been exempted from the enforcement" and shall not apply to a person who is "serving the sentence," shall not be accepted.

C. If the current Criminal Act applies

In sentencing a punishment for a crime committed during probation, a case that constitutes the conditional provision stipulated in Article 62 (1) of the current Criminal Act that provides for the reason for disqualification from probation shall be limited to a case where the probation has already become invalid or cancelled, or a case where the probation period has not been completed by the time the sentence was delivered so the sentence still remains valid, while a case where the probation period has passed without losing validity or being revoked shall not be included in the above condition, therefore, even if a crime is committed during probation, if the probation period has passed without losing validity or being revoked, another sentence of probation shall be delivered (refer to Supreme Court Decision 2006Do6196 Delivered on February 8, 2007, et al).

According to the above legal reasoning and the Record, in this case, in sentencing punishment against the crime in this case committed by the defendant during probation as seen above, because a decision to cancel the above probation was finalized before the probation period has passed for the violation of the probation regulations et al, which shall constitute a reason for disqualification for probation stipulated in Article 62 (1) of the current Criminal Act, so probation shall not be sentenced for the defendant, in accordance with the provisions in the current Criminal Act.

Unlike the above, the argument in the Grounds for Appeal purports that the defendant did not commit the crime in this case "after the sentence was finalized for imprisonment or higher" as stipulated in Article 62 (1) of the current Criminal Act, on the premise of an arbitrary opinion that the probation sentence for the above imprisonment sentence against the defendant was finalized only when the decision to revoke the probation was finalized, shall not be accepted.

D. Therefore, either by applying the former Criminal Act or by applying the current Criminal Act, a sentence of probation shall not be delivered against the defendant for each of the acts of crime in this case, and with the same purport the court below reversed the decision by the first court that sentenced one (1) year in prison and two (2) years of probation against the defendant and justly sentenced the defendant to ten (10) months in prison and the decision of the court below is not erroneous in the misapplication of legal principles as to the grounds for the disqualification from probation, as otherwise argued by the legal counsels for the defendant.

3. Therefore, the appeal is dismissed, and this decision is delivered with the assent of all Justices who reviewed the appeal.

Source

• Supreme Court Decision 2007Do768 Delivered on July 27, 2007, Supreme Court Library of Korea