Supreme Court: "Probation Order Not Allowed When Suspended Sentence Is Pronounced"... Accepts 'Prosecutor's Emergency Appeal'

Supreme Court in Seocho-dong, Seoul. Photo by Honam Moon munonam@

[Asia Economy Reporter Kim Daehyun] The Supreme Prosecutors' Office filed an extraordinary appeal against a ruling that imposed a probation order on a defendant who was sentenced to probation, and the Supreme Court corrected it. An extraordinary appeal is an emergency relief procedure in which the Prosecutor General requests a retrial at the Supreme Court when an illegality is found in a finalized criminal judgment.

On the 19th, the Supreme Court's 3rd Division (Presiding Justice No Jeonghee) announced that it overturned the part of the original judgment that ordered 3 years of probation for Park Mo (48), who was indicted for violating the Sexual Violence Punishment Act (forcible molestation within a family relationship), and dismissed the probation order request. Park was originally sentenced to 2 years and 6 months in prison with a 3-year probation.

Earlier, Park was tried on charges of forcibly molesting his 12-year-old biological daughter four times while intoxicated at his home in Anseong-si, Gyeonggi Province in 2019.

The first trial court stated, "The crime is serious and the nature of the offense is bad. However, the victim submitted a letter expressing that she does not wish to punish the defendant," and sentenced him to 2 years and 6 months in prison with a 3-year probation. Additionally, considering the circumstances and impulsiveness of the crime, the court ordered a 3-year probation, citing the risk of reoffending in sexual violence crimes.

Although Park gave up his appeal and the sentence was finalized, the Supreme Prosecutors' Office filed an extraordinary appeal on December 31 of last year, after the appeal submission period had passed. Article 9, Paragraph 4 of the current Electronic Monitoring Act stipulates that "when a suspended sentence or probation is imposed for certain criminal cases, the court must dismiss the request for a probation order by judgment."

The Supreme Court also deemed the extraordinary appeal by the Supreme Prosecutors' Office to be valid. The court pointed out, "The original judgment violated the law by sentencing the defendant to probation while ordering probation under the Electronic Monitoring Act and imposing compliance requirements," and stated that "this constitutes a disadvantage to the applicant for the probation order."

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