병합범의 처벌원칙과 사후적 경합범에 대한 처벌

Before the revision of the Criminal Act by Act No. 7623, Jul. 29, 2005, the equity between simultaneous concurrent crimes and ex post concurrent crimes had been considered at the execution stage of the penalty under Article 39(2) of the Criminal Act, but after the revision, it has been considered at the sentencing stage of the penalty under Article 39(1) of the Criminal Act. Whether several crimes become simultaneous concurrent crimes or ex post concurrent crimes is determined by the accidental factors such as whether several public prosecutions against an offender are instituted at the same time, whether the oral proceedings are jointed. Minimizing the effects of these accidental factors on the criminal responsibility of the offender would conform to the principle of responsibility as well. According to Article 39(1) and 39(2) of the previous Criminal Act, at least two penalties were sentenced anyway in the case of ex post concurrent crimes, so more unfavorable outcomes actually happened to the defendant than in the case of concurrent crimes, and it could not be completely excluded. In that judges shall rule independently according to their conscience and in conformity with the Constitution and laws(Article 103 of the Constitution of the Republic of Korea), even if under Article 39(1) of the current Criminal Act, there is a possibility that the difference of the sentence between judging as simultaneous concurrent crimes and judging as ex post concurrent crimes will work against the defendant. Adopting either the principle of total penalty or the principle of additional penalty can be a measure to solve the problem. It is not against the intent of recognizing the principle of ne bis in idem to consider the sentence about the crime for which judgment has become final, since it is for giving the defendant benefits in sentencing. If the intent of recognizing concurrent crimes is not to punish the defendant too heavily, it should be equally carried out in both simultaneous concurrent crimes and ex post concurrent crimes. The way to carry out the intent of recognizing concurrent crimes without affecting judicial independence would be to enact the provision to accept the principle of total penalty or the principle of additional penalty in the Criminal Act.