A. The Defendant was physically and mentally weak at the time of committing the crime.

B. The sentence of the lower court’s unfair sentencing (2 million won in punishment, 40 hours in total, 200,000 won in total, and 40 hours in total) is too unreasonable.

2. Determination

A. The following circumstances acknowledged by the evidence duly adopted and investigated by the court below, namely, the fact that the defendant had drinking alcohol at the time, can be acknowledged. However, in light of the circumstance leading up to the crime of this case, the means and method of the crime, and the circumstances before and after the crime, at least the defendant's mental and physical weakness claim is not accepted, since it appears that the defendant's act constitutes free act due to negligence under Article 10 (3) of the Criminal Act.

B. Improper sentencing is a discretionary judgment that takes into account the factors constituting conditions for sentencing prescribed in Article 51 of the Criminal Act based on statutory penalty, within a reasonable and appropriate scope.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

In the absence of such exceptional circumstances, it is desirable to respect the first instance sentencing determination (see Supreme Court Decision 2015Do3260, Jul. 23, 2015, etc.). The circumstances alleged by the Defendant as an element favorable to sentencing in the trial are most the lower court.