Prosecutor's Change in Sentence Execution Order, Supreme Court: "Within Prosecutor's Discretion"

Detention in a Labor Camp During Imprisonment
"Legality Cannot Be Judged by Retrospectively Weighing Pros and Cons"

The Supreme Court has ruled that when both detention in a labor camp and imprisonment are executed according to a fine sentence, the order can be changed at the prosecutor's discretion, and the legality should not be judged by retrospectively weighing the pros and cons.

According to the legal community on the 14th, the Supreme Court's 2nd Division (Presiding Justice Oh Kyung-mi) overturned the lower court's ruling that sentenced Mr. A, who was indicted for special injury charges, to 8 months in prison with a 2-year probation, and remanded the case to the Busan District Court on the 27th of last month.

Mr. A's sentences for three crimes were finalized in 2014. For special robbery, he was sentenced to 2 years and 6 months imprisonment; for assault, a fine of 700,000 won; and for violating the Road Traffic Act (drunk driving), a fine of 2,000,000 won. Mr. A did not pay the fines and was detained in a labor camp for a period calculated at 50,000 won per day.

Mr. A's imprisonment began on January 23, 2014. Subsequently, the prosecutor changed the order of sentence execution, suspending the imprisonment on March 21, 2015, and Mr. A was detained in the labor camp for 53 days to complete the fine sentence execution first. Then, the suspended imprisonment resumed, and after serving the 2 years and 6 months sentence, he was released on September 16, 2016. After release, Mr. A was sentenced again by the first and second trial courts on September 4, 2019, to 8 months imprisonment with 2 years probation for a special injury offense.

The key issue in this Supreme Court ruling was whether Mr. A could be sentenced to probation for imprisonment. Article 62 of the Criminal Act states that if a person commits another crime within 3 years after completing the execution of a prison sentence or higher, probation cannot be granted. Since Mr. A committed the crime within 3 years after release, he was disqualified from probation.

The second trial court interpreted the law arbitrarily and changed the order of sentence execution, ruling that probation was possible. They considered that Mr. A had continuously served imprisonment from January 23, 2014, and that the sentence ended on July 22, 2016, so there was no disqualification for probation.

However, the Supreme Court ruled differently. After nearly four years of reviewing the case, the Supreme Court found that the prosecutor's change of the order of sentence execution was lawful, and since the imprisonment ended on Mr. A's actual release date of September 16, 2016, he was indeed disqualified from probation.

The Supreme Court stated, "The change in the order of sentence execution can be made to ensure the appropriateness of sentence execution, such as to allow the prisoner to meet parole requirements earlier for their benefit, or in cases where the statute of limitations for imprisonment is long, to execute the lighter fine sentence detention in a labor camp first to interrupt the statute of limitations for the fine sentence."

Furthermore, the Supreme Court said, "It is not intended to allow arbitrary changes in the order of sentence execution or to permit unfair infringement on the prisoner's interests. Therefore, prosecutors must exercise their authority to change the order of sentence execution within an appropriate discretionary scope, keeping in mind the purpose of the system and the ideology of protecting the prisoner's fundamental rights," adding, "It is not permissible to judge the illegality of the order change by retrospectively evaluating the pros and cons of its impact on the prisoner based on incidental circumstances."