폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.
1. Summary of grounds for appeal;
A. The evidence No. 1, which was seized by the Defendant from the misapprehension of the legal principle, should be confiscated as an article provided for a criminal act, and the lower court erred by omitting the confiscation thereof.
B. The sentence imposed by the lower court (two years of imprisonment for a period of eight months suspension, one year of probation) is too uneasible and unfair.
2. According to the evidence duly admitted and examined by the lower court, the police officer seized the fingerdo (No. 1) from the Defendant, the owner and the owner, the “E” distance front of the “E” Ma, which was located in Chungcheongnam-gun, Chungcheongbuk-gun, on September 7, 2012, and the fact that the Defendant was offered to threaten the victims at the above location.
However, the confiscation under Article 48(1)1 of the Criminal Act is a voluntary confiscation. However, considering the general fact that the confiscation of goods provided in the same case can not be ruled out unless the goods are subject to voluntary confiscation, and that the confiscation of goods provided in the same case, the court below committed an unlawful act that affected the conclusion of the judgment by deviating from the discretionary power on voluntary confiscation.
3. If so, the prosecutor's appeal on this part is with merit, and without examining the remaining grounds of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.
【Judgment to be used again】 Criminal facts and summary of evidence recognized by the court are identical to the facts constituting the offense and summary of evidence, and thus, they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, Article 283(1) and 283 of the Criminal Act concerning the crime;