사후적 경합범과 형감경, 상습범 및 재심

Abstract

punished with the penalty for the most serious crime(the Criminal Act §40). But if one person’s plural acts constitute multiple offences, the sentence at the same trial shall be the most severe sentence, the aggravated sentence, or the separated sentence(the Criminal Act §37, §38). When the defendant has been punished with imprisonment at the earlier 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). The mitigation on ex post facto multiple convictions depends on the discretion of judge, but it is prescribed by law. Therefore the method of mitigation is regulated by a half reduction(the Criminal Act §55 ① iii). It is not allowed to mitigate determinate imprisonment below a half of lower limit, even though exemption of penalty is available. But if plural acts are evaluated as the habitual offence, remaining acts included by a prior conviction shall be adjudicated with exemption of prosecution. There is no needto consider the problem of multiple convictions. When the review on a prior conviction is invoked, the renewal conviction shall be a criteria to handle ex post facto multiple convictions or the habitual offence.