President Kim Osu's Emergency Appeal Corrects Law-Violating Ruling... Supreme Court, Reversal Judgment

Prosecutor General Kim Osu. / Photo by Jinhyung Kang aymsdream@

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] A court ruling that violated the law by imposing a fine exceeding the statutory punishment range was corrected through an extraordinary appeal by Prosecutor General Kim Oh-soo.

The Supreme Court's 2nd Division (Presiding Justice Lee Dong-won) announced on the 24th that it overturned the original summary order sentencing A, who was indicted for unlicensed driving and drunk driving under the Road Traffic Act, to a fine of 4 million won, and instead sentenced him to a fine of 3 million won in the extraordinary appeal trial.

A was caught driving a Morning vehicle without a license while intoxicated on a road in Dong-myeon, Yangsan-si, Gyeongnam Province, in the early morning of June 11, 2019. At that time, A's blood alcohol concentration was 0.071%, which corresponds to the license suspension level under the Road Traffic Act.

The prosecution filed a summary indictment against A for unlicensed driving and drunk driving under the Road Traffic Act, and in October 2019, the court sentenced A to a fine of 4 million won. Since A did not request a formal trial, the summary order of the first trial court was confirmed as is.

At that time, under the Road Traffic Act, a person with a blood alcohol concentration between 0.05% and less than 0.1% could be punished by "imprisonment for up to 6 months or a fine of up to 3 million won." The law has since been amended, and currently, a person with a blood alcohol concentration between 0.03% and less than 0.08% can be punished by "imprisonment for up to 1 year or a fine of up to 5 million won."

Also, at that time, unlicensed driving under the Road Traffic Act could be punished by "imprisonment for up to 1 year or a fine of up to 3 million won."

The problem was that the court imposed a fine exceeding the legally permissible range (punishment range) when sentencing A to a fine through a summary order.

Unlicensed driving and drunk driving are treated as a conceptual concurrence under the Criminal Act (Article 40 of the Criminal Act). Conceptual concurrence refers to a case where a single act corresponds to multiple crimes simultaneously. In other words, at the time of the offense, A was driving without a license and while intoxicated; although the act was one?driving?legally, two violations of the Road Traffic Act, unlicensed driving and drunk driving, were established.

Article 40 of the Criminal Act (Conceptual Concurrence) states, "If one act corresponds to multiple crimes, the punishment prescribed for the most serious crime shall be applied."

Conceptual concurrence contrasts with real concurrence, where multiple crimes are committed through multiple acts. The Criminal Act stipulates that in cases of real concurrence, if the punishment for the most serious crime is death or life imprisonment (or life imprisonment without parole), the punishment for the most serious crime shall be applied; otherwise, the punishment may be increased up to half of the duration (in the case of imprisonment) or amount (in the case of fines) of the punishment prescribed for the most serious crime.

In A's case, since the two crimes of unlicensed driving and drunk driving were committed through one act of driving, it corresponds to conceptual concurrence. Therefore, the heavier punishment among the two crimes' statutory punishments must be applied.

In this case, comparing the statutory punishments for the two crimes, the upper limit of the fine is the same at 3 million won, but imprisonment for unlicensed driving is more severe. Therefore, the statutory punishment that the court can impose is "imprisonment for up to 1 year or a fine of up to 3 million won" for unlicensed driving. Hence, the original court's imposition of a 4 million won fine violates the law.

Upon recognizing this fact, the Supreme Prosecutors' Office filed an extraordinary appeal in August of this year, about a year after the first trial sentence.

An extraordinary appeal can be filed by the Prosecutor General to the Supreme Court when a violation of the law is found in a finalized judgment. Typically, when the original judgment is recognized as violating the law, the Supreme Court overturns the original judgment, but this only corrects errors in the interpretation or application of the law and does not have special effects on the defendant.

However, as an exception, in cases like this where the original judgment is disadvantageous to the defendant, the Criminal Procedure Act stipulates that the Supreme Court shall overturn the original judgment and re-try the case.

The court stated, "In cases where the two crimes of unlicensed driving and drunk driving are in a conceptual concurrence relationship, punishment shall be imposed according to the heavier punishment prescribed for the Road Traffic Act violation (unlicensed driving). If a fine is chosen, the punishment range shall be between 50,000 won and 3 million won."

It continued, "Nevertheless, the original court, after recognizing the two crimes as in a conceptual concurrence relationship, chose a fine and imposed a fine of 4 million won on the defendant, exceeding the punishment range mentioned above. This constitutes a violation of the law in the trial of the case," and added, "The reason for the extraordinary appeal pointing this out is valid, so the original judgment is overturned and the defendant's case shall be retried," explaining the reason for the reversal judgment (overturning the original judgment and re-trying the case itself).

This content was produced with the assistance of AI translation services.