〈Case concerning whether a crime committed after release constitutes a repeated offense and a ground for disqualification from suspended sentence, where the date of completion of the execution of a sentence was delayed due to the prosecutor's direction changing the order of execution of sentences〉

【Holding】

[1] The scope within which the prosecutor, as the authority directing the execution of sentences, may exercise the power to change the order of execution of sentences

[2] The reference time (= the time when the direction for change was given) and the criteria for determining whether the prosecutor's direction changing the order of execution of sentences is unlawful as a deviation from or abuse of discretion / Whether the unlawfulness of the direction changing the order of execution may be determined by evaluating, from an ex post perspective and as of the time such circumstances arose, whether the change in the order of execution was favorable or unfavorable to the convicted person on the basis of fortuitous circumstances such as the convicted person's commission of a new crime after the change in the order of execution (negative)

【Summary of Decision】

[1] With respect to the order of execution of sentences, the Criminal Procedure Act declares the principle that the heavier sentence is executed first, providing in the main text of Article 462 that "where two or more sentences are to be executed, the heavier sentence shall be executed first, except for deprivation of qualifications, suspension of qualifications, fines, minor fines, and confiscation," while at the same time recognizing, in the proviso to Article 462, an exception under which the prosecutor, as the authority directing the execution of sentences, may change the order of execution of sentences in accordance with a certain procedure, by providing that "however, the prosecutor may, with the permission of the Minister to whom he or she belongs, suspend the execution of the heavier sentence and execute another sentence." The Rules on Prosecutorial Execution Affairs Concerning Imprisonment, etc., which prescribe, as a Ministry of Justice ordinance under Article 11 of the Prosecutors' Office Act, the methods and procedures for affairs concerning the execution of the death penalty and sentences of imprisonment for the proper administration of sentence execution affairs, provide in Article 39(1), under the heading "Direction of execution of confinement in a workhouse by change of the order of execution of sentences," that "where a prosecutor directs the execution of confinement in a workhouse with respect to a convicted person who has been sentenced to imprisonment and a fine concurrently, or who has been sentenced to a fine for another crime during the execution of a sentence of imprisonment, the prosecutor shall, with the permission of the head of the prosecutors' office to which he or she belongs, suspend the execution of the sentence of imprisonment and first direct the execution of confinement in a workhouse. However, this shall not apply where it is clear that the prescription of the sentence of a fine will not be completed even if the sentence of imprisonment is executed first," thereby prescribing the procedure, etc. for changing the order of execution of sentences so as to execute confinement in a workhouse for a fine prior to a sentence of imprisonment.

The commencement and completion of the execution of a sentence are directly related to the calculation of the period for repeated offenses or the period of disqualification from suspended sentence under Articles 35(1) and 62(1) of the Criminal Act and the interruption of the prescription of a sentence under Article 80 of the Criminal Act, and in the case of a convicted person sentenced to imprisonment and a fine concurrently, whether the fine has been paid in full determines, under Article 72(2) of the Criminal Act, whether the requirements for parole from the sentence of imprisonment with or without labor are satisfied; thus, the order of execution of sentences and any change thereto have a significant effect on the interests of the convicted person. Accordingly, the prosecutor's change of the order of execution of sentences under the proviso to Article 462 of the Criminal Procedure Act may be made in order to ensure the propriety of sentence execution, such as for the purpose of enabling the convicted person to satisfy the requirements for parole at an early stage for the benefit of the convicted person, or, where the prescription of the sentence of imprisonment is long, for the purpose of interrupting the prescription of the fine, a lighter sentence, by first executing confinement in a workhouse for the fine. However, since the proviso to Article 462 of the Criminal Procedure Act is not intended to permit the prosecutor's arbitrary change of the order of execution of sentences or a resulting unjust infringement of the interests of the convicted person, the prosecutor must exercise the power to change the order of execution of sentences within the scope of proper discretion, bearing in mind the purpose of the system for changing the order of execution of sentences and the ideal of guaranteeing the fundamental rights of convicted persons. The proviso to Article 39(1) of the Rules on Prosecutorial Execution Affairs Concerning Imprisonment, etc., which restricts a change of the order of execution of sentences for the purpose of executing confinement in a workhouse for a fine prior to a sentence of imprisonment "where it is clear that the prescription of the sentence of a fine will not be completed even if the sentence of imprisonment is executed first," reflects the same purpose.

[2] Whether the prosecutor's direction changing the order of execution of sentences is unlawful as a deviation from or abuse of discretion must be determined as of the time the direction for change was given, by comprehensively taking into account the purpose, motive, and circumstances of the change, whether the convicted person requested or consented to the change in the order of execution, the effect the change in the order would have on the convicted person, the status of the running of the prescription of the sentences, and so forth. Conversely, the unlawfulness of the direction changing the order of execution cannot be determined by evaluating, from an ex post perspective and as of the time such circumstances arose, whether the change in the order of execution was favorable or unfavorable to the convicted person on the basis of fortuitous circumstances such as the convicted person's commission of a new crime after the change in the order of execution of sentences.

【Referenced Statutes】

[1] Articles 35(1), 62(1), 72, and 80 of the Criminal Act; Article 462 of the Criminal Procedure Act; Article 11 of the Prosecutors' Office Act; Articles 1 and 39(1) of the Rules on Prosecutorial Execution Affairs Concerning Imprisonment, etc. [2] Article 462 of the Criminal Procedure Act; Article 11 of the Prosecutors' Office Act; Article 39(1) of the Rules on Prosecutorial Execution Affairs Concerning Imprisonment, etc.


(Source: Supreme Court Decision 2021Do4355, March 27, 2025 | Judicial Information Disclosure Portal, Precedents)