폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
The judgment of the court below is reversed.
The crime of Article 1 of the judgment of the defendant shall be punished by imprisonment with prison labor for one year and two months, and the crime of Article 2 of the judgment.
1. The summary of the grounds for appeal (an express 1: imprisonment with prison labor for one year and two months, and a 2-month imprisonment with prison labor for a year and six months) by the court below is too unreasonable.
2. Determination
A. The court below held ex officio (as to the crime No. 1 in the form of judgment) that the crime set forth in Article 1 of the judgment of the court below constituted a crime subject to the final judgment of the first head as set forth in the judgment of the court below and a crime subject to the latter part of Article 37 of the Criminal Act, and sentenced the defendant to imprisonment with prison labor and two months for the above crime at the end of the treatment
However, in light of the language, legislative intent, etc. of the latter part of Article 37 and Article 39(1) of the Criminal Act, if a crime for which judgment has not yet become final and conclusive cannot be judged concurrently with the crime for which judgment has already become final and conclusive, the relation of concurrent crimes under the latter part of Article
(See Supreme Court Decision 2014Do469 Decided March 27, 2014). According to the records, a crime subject to the final judgment of the first head as indicated in the holding of the lower judgment is that the Defendant received psychotropic drugs by delivering the amount equivalent to one-time medication to the Mesaminist of narcotics on August 2004.
However, the defendant had already been sentenced to six months of imprisonment at the Gwangju District Court on August 30, 2005, and was sentenced to one year and six months of imprisonment at the Daegu District Court on April 24, 2007, and the violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.) which became final and conclusive on the same day. The first head of the original judgment at the original judgment was committed before the above judgment becomes final and conclusive, and thus, the above judgment and the latter part of Article 37 of the Criminal Act were concurrent crimes.
Therefore, the first head of the judgment of the court below and the first crime of this case in the judgment of the court below can not be judged at the same time.
Therefore, between the crime of Article 1 and the crime subject to final judgment of the first head as stated in the judgment of the court below, the relationship of concurrent crimes under the latter part of Article 37 of the Criminal Act cannot be established.