사후적 경합범에 대한 고찰

Abstract

When a single act constitutes two or more crimes, the penalty for the most serious crime shall be imposed(the Criminal Act §40). But when it comes to sentencing a defendant with multiple convictions at the same trial, the sentence on each conviction shall be merged to the most severe sentence(death, life imprisonment) or the aggravated sentence by one half of the maximum term/amount(determinate imprisonment, deprivation of qualification, suspension of qualification, fine, confiscation), or the sentences for each crime(different penalty) shall be imposed separately(the Criminal Act §37, §38). And when the defendant is adjudicated as committing multiple convictions spilt by an earlier final judgment with imprisonment at the following trial, the sentence on remaining convictions shall be imposed by considering equity with sentencing all convictions at the same trial, and the sentence may be mitigated or exempted(the Criminal Act §37, §39 ①). If amnesty or remittal is granted to any crime of multiple convictions, the sentence on remaining convictions shall be determined de novo(the Criminal Act §39 ③). In the execution of punishment for multiple convictions, the period of sentence already served shall be taken into account(the Criminal Act §39 ④). Recently the supreme court delivered a judgment that the defendant may be benefited by sentencing on multiple convictions only when she or he is adjudicated at the same trial or there is a possibility of adjudicating at the same trial. But when the defendant committed crimes before and after a judgment with imprisonment is finalized, she or he should be sentenced according to the equity and by the discretionary mitigation or exemption because the sentencing on multiple convictions and its execution is based on the principle of pro reo.