A critical study on ‘requirements for the aggravation of repeated crime’ and ‘grounds for disqualification from suspension of execution’ regarding the scope of the execution period of ‘sentence of imprisonment without prison labor or higher’

In determining whether Article 35(1) of the Criminal Code aggravates the offense and Article 62(1) disqualifies the defendant from probation, the Supreme Court ruled that the “date of completion of the sentence of imprisonment” should be considered as the date on which the defendant is actually released from prison due to a change in the order of execution of the sentence. If the “date of the defendant's actual release from prison” is used as the benchmark, it would include the period of “lockup at workhouser” imposed as a penalty for failure to pay fines or minor fines. However, in light of the principle of non-inferential interpretation of criminal statutory law, the principle of clarity, the principle of textual interpretation, and the intention of the legislator at the time of enactment of the Criminal Code, the scope of ‘sentence of imprisonment without prison labor or more severe punishment’ includes 'imprisonment' and 'imprisonment without prison labor', not fines or minor fines. As the Supreme Court interpreted, the inclusion of “transportation to lockup at workhouser” as an alternative to “fine or minor fine” in cases other than those in which a free sentence was initially imposed would be tantamount to creating a law by interpretation, which is a legislative act, and thus violates the principle of separation of powers. The Supreme Court held that the prosecutor's decision to change the order of execution of the sentence was not an abuse of discretion because the prosecutor may have made the change at the request of the defendant, and the change in the order of execution of the sentence was for the 'benefit of the prisoner', i.e. to fulfill the 'full payment of fine or minor fine’ as one of the prerequisites for parole. However, the issue of whether the prosecutor's 'change of sentence' was an abuse of discretion and the interpretation of the scope of the 'sentence of imprisonment without prison labor or higher' stipulated in Articles 35(1) and 62(1) of the Criminal Code are separate issues. Furthermore, even if a procedure is established for a prisoner's consent or application for a 'change in the order of execution of the sentence' in relation to the future placement of the prisoner in labor, the scope of the effect of such consent or application is limited to the benefit of fulfilling the parole requirements, while the disadvantage of a certain increase in the total number of days of detention may result. In short, the existence of a prisoner's consent or application for a 'change in the order of execution of the sentence' does not change the scope of interpretation derived from the 'sentence of imprisonment without prison labor or more than imprisonment without prison labor' stipulated in Articles 35(1) and 62(1) of the Criminal Code.