도로교통법위반(무면허운전)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
Summary of Grounds for Appeal
The court below determined the defendant's punishment by considering the fact that the defendant was driving while under the influence of alcohol as a heavy sentencing condition.
However, there is no fact that the defendant has driven under the influence of alcohol.
In light of these circumstances and the overall circumstances, such as the attitude of the defendant, occupation, family relationship, health status, etc., the sentence of the court below (eight months of imprisonment) is too unreasonable.
2. In light of “the principle of balance of punishment” or “the principle of the principle of the responsibility and the principle of the responsibility” that the discretion on the sentencing of the fact-finding court and the proper balance between the crime and the punishment should be achieved, there exists an inherent limitation recognized within the scope of sentencing determination as to the criminal liability of the accused as stated in the facts charged, in view of the fact-finding
In a case where the court of fact-finding did not prove, on the basis of the crime charged to the accused, the motive or result of the crime, the circumstances after the crime, etc., according to the evidence having probative value, which is adequate to exclude a reasonable doubt as to the circumstances constituting a separate criminal offense that are not included in the conditions of sentencing as prescribed by Article 51 of the Criminal Act, the court of fact-finding, as a core sentencing condition, has the same substance as additionally punishing the Defendant for the crime for which no prosecution has been instituted against the Defendant by taking the determination of the sentence into account as an additional condition of sentencing, may be deemed to have infringed
(see, e.g., Supreme Court Decisions 2008Do1816, May 29, 2008; 2020Do8358, Sept. 3, 2020). The lower court determined the sentence against the Defendant on the ground that “the circumstance that the Defendant may be deemed to have driven under the influence of alcohol exists” was the heavy sentencing condition.
According to the record, although the defendant could drink at the time of the crime of this case, he can do so.