특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)
The judgment of the first instance shall be reversed.
A defendant shall be punished by imprisonment for a term of two years and a fine of three billion won.
The above fine shall be imposed on the defendant.
1. Summary of grounds for appeal;
A. The sentence of the first instance court (the sentence of imprisonment of three years with prison labor and the fine of 3.6 billion won per day) is too unreasonable; the sentence of the first instance court (the sentence of the imprisonment of 2 years and the fine of 3.6 billion won per day);
(b) Prosecutors;
A. In the event that a fine imposed on a violation of Acts and subordinate statutes is more than 50 million won but not more than 5 billion won, the detention period in a workhouse shall not be less than 500 days pursuant to Article 70(2) of the amended Criminal Act, but the first instance court sentenced a fine of 3.6 billion won to a fine of 200 days (18 million won per day) while setting the detention period in a workhouse with respect to a fine of 3.6 billion won, and such judgment in the first instance court is erroneous in the misapprehension of Acts and subordinate statutes, which affected
B. The first sentence of unfair sentencing is too unjustifiable and unfair.
2. The first instance court determined the period of detention in the workhouse by applying Articles 70 and 69(2) of the former Criminal Act (amended by Act No. 12575, May 14, 2014) with respect to the Defendant’s detention in the workhouse, while sentencing a fine of KRW 3.6 billion to the Defendant, as well as setting the period of detention in the workhouse at 200 days (one day).
However, Article 70(2) of the Criminal Act amended by Act No. 12575 on May 14, 2014 provides that when a fine to be imposed is more than 500 million won but less than 5 billion won, the period of detention shall be at least 500 days, and Article 2 of the Addenda provides that Article 70(2) of the Criminal Act provides that a public prosecution shall be instituted for the first time after the enforcement of the Act.
According to the records, it can be recognized that the prosecution was instituted on October 22, 2014, which was after the enforcement of Article 70(2) of the above revised Criminal Code. Thus, the court of first instance that sentenced the above fine of KRW 3.6 billion should have determined the period of detention in the workhouse by applying Article 70(2) of the above revised Criminal Code.
Nevertheless, the first instance court determined the daily conversion amount of the above fine as 18 million won, and the detention period in the workhouse became more than 200 days.
Therefore, the decision of the court of first instance is erroneous in the applicable law and the period of detention in the workhouse.