형법 제39조 제1항의 의미

Abstract

Criminal Act Article 37 defines the concurrent crimes. The preceding paragraph of Article 37 states coincidence concurrent crimes which is defined as ‘several crimes for which judgement has not become final.' The post concurrent crimes is defined as ‘A crime for which judgement to punish has become final and the crimes committed before the said final judgement' in the latter part of Article 37. The reason for regulating the post concurrent crimes(the latter part of the Article 37, Article 39) besides coincidence concurrent crimes(the preceding part of the Article 37, Article 38) is that the crime for which judgement to punish has become final and the crimes committed before the said final judgement is sentenced as coincident concurrent crime by definition. Therefore, the event which is not noticed to the court cannot be the reason of giving advantage or (especially) disadvantage to the criminal suspect. Amended by Act No. 7623, July, 29, 2005, Criminal Act Article 39 (1) is stated as follows.' In the event there is a crime which has not been adjudicated among the concurrent crime, a sentence shall be imposed on the said crime taking account of equity with the case where the said crime is adjudicated concurrently with a crime which has been finally adjudicated. In this case the said punishment may be mitigated or exempted.' According to the amendment, it is possible to reduce the disadvantage when the criminal suspect is sentenced as post concurrent crime than sentenced as coincidence concurrent crime. The current decision(2006Do8376) represents the first meaningful Supreme Court decision of amended Article 39 (1). The decision includes ambiguous statement such as “deciding coincidentally and considering the equity" and the court may use the discretion in regard to reasonable determination of punishment by applying the previous statement. Therefore, the decision is not subject to restriction of severe application of Article 38 but also the mitigation or the exemption of punishment is considered as the court's genuine discretion. If the criminal suspect who commits a crime for which judgement to punishment has become final(b) and the crimes committed before the said final judgement(a) sentenced as coincident concurrent crime, the decision is not rational and it cannot meet the liability of the regulation. The current article critically examines the interpretation of Supreme Court statement of “deciding coincidentally and considering the equity" and the further conclusion.