사기등
All appeals by the defendant are dismissed.
1. The main points of the grounds for appeal are as follows: The punishment of the lower court (2 months of imprisonment with prison labor for the first instance judgment, and 2 million won for the second instance judgment) is too unreasonable.
2. Article 457-2(1) of the Criminal Procedure Act provides that “No sentence of a kind heavier than that of a summary order shall be imposed on a case for which the defendant has requested a formal trial,” thereby setting forth the principle prohibiting the raise of punishment in the case of a formal trial request.
The above prohibition principle is applicable to the case where a defendant claims a formal trial and the case where another case is subject to concurrent crimes after the consolidated trial is conducted (see, e.g., Supreme Court Decisions 2020Do355, Mar. 26, 2020; 2019Do15700, Jan. 9, 2020). This court decided to conduct a consolidated hearing of each appeal case against the judgment below, and each of the offenses of the judgment below are concurrent crimes under the former part of Article 37 of the Criminal Act.
However, with respect to the judgment of the court of the second instance on which the defendant requested formal trial against the summary order and sentenced to a fine, this court cannot sentence imprisonment in accordance with the principle of prohibition of raising the above punishment.
On the other hand, the court below rejected the defendant's allegation of unfair sentencing as stated below against the judgment of the court of first instance sentenced to imprisonment.
Thus, the judgment of the court below cannot be sentenced to a single sentence against the judgment, and there is no reason to reverse the judgment ex officio on the ground of consolidation.
3. The determination of sentencing on the assertion of unfair sentencing is based on the statutory penalty, and a discretionary judgment is made within a reasonable and appropriate scope, taking into account the factors constituting the conditions for sentencing as prescribed in Article 51 of the Criminal Act.
However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness that our Criminal Procedure Act takes, the sentencing of the first instance court is examined.