Supreme Court: "Crimes Committed During Consecutive Imprisonments... Recidivism Period Should Lead to Enhanced Punishment"

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

[Asia Economy Reporter Kim Daehyun] The Supreme Court has ruled that a defendant who committed fraud against a fellow inmate while serving two separate prison sentences for one judgment should be subject to aggravated punishment as a recidivist. The court held that the two prison sentences should not be considered as one sentence, but rather that the crime committed during the recidivism period (within 3 years after completion or exemption of sentence execution) of the earlier sentence should be recognized as recidivism.

On the 13th, the Supreme Court's 3rd Division (Presiding Justice No Jeonghee) announced that it overturned the lower court's ruling sentencing defendant A to 4 months in prison on fraud charges and remanded the case to the Seoul Eastern District Court.

A was prosecuted for fraudulently deceiving fellow inmate B in the adjacent cell at Seoul Eastern Detention Center in 2019 by pretending to be a wealthy person and promising to transfer ownership of an apartment if B paid the overdue taxes on it, thereby embezzling 22.6 million won. However, the apartment A mentioned did not exist, and it was found that A used the money received as a settlement for his criminal case.

Previously, A had been sentenced to two prison terms in one judgment in 2016 for fraud and other charges, serving a 3-year sentence first, followed by a consecutive 1-year sentence. Accordingly, the issue arose whether A should be subject to aggravated punishment for committing the crime during the recidivism period.

The first and second trial courts ruled that "this crime does not constitute recidivism" and sentenced A to 4 months in prison. The first trial court explained, "The enforcement agency prioritized executing the heavier 3-year sentence, which was completed in 2018, and then commenced the 1-year sentence." It added, "According to Article 37 of the Criminal Act, 'subsequent concurrent offenses,' when two sentences are imposed in one judgment, it is reasonable to treat them as one sentence for recidivism aggravation." The latter part of Article 37 of the current Criminal Act stipulates that 'a crime punished by imprisonment or heavier sentence with a confirmed judgment and a crime committed before the confirmation of that judgment shall be considered concurrent offenses,' regulating subsequent concurrent offenses. The second trial court also upheld the first trial court's ruling and dismissed all appeals.

However, the Supreme Court ordered a retrial and reconsideration of the case. It ruled that while the 1-year sentence does not constitute recidivism, the 3-year sentence that was completed earlier should be subject to aggravated punishment as recidivism. The court stated, "It is clear that the crime in this case was committed within 3 years from the completion of the 3-year sentence execution, thus constituting recidivism," and added, "The lower court erred in its legal interpretation regarding recidivism, which affected the judgment."

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