특정범죄가중처벌등에관한법률위반(운전자폭행등)등
The judgment of the court below (including the portion not guilty) shall be reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
except that this judgment.
Of the facts charged against the Defendant by the Prosecutor, the lower court acquitted the Defendant only of interference with business from October 17, 2016 to 21:04 on the same day, although the prosecutor prosecuteds that “the Defendant interfered with the business of the victim from October 17, 2016 to 21:30 on the same day” and the lower court acquitted the Defendant of interference with the business of the victim from October 17, 2016 to October 43, 2016.
As such, the lower court rendered a not-guilty verdict on this part of the facts charged in violation of the principle of unfavorableness. In so doing, the lower court erred by misapprehending the legal doctrine, thereby affecting the conclusion
Defendant
The punishment (one year and six months of imprisonment) imposed on the defendant by the court below is too unreasonable.
Judgment
In a case where there is no concern about substantial disadvantage to the defendant's exercise of the defendant's right to defense against the prosecutor's assertion, the court recognized facts different from the facts charged without modification of indictment procedures.
Even if there is no violation of the principle of influenite disadvantage (see, e.g., Supreme Court Decision 2006Do1667, Jun. 15, 2006). According to the records, the prosecutor indicted the defendant that he/she interfered with the victim's restaurant business for about three hours from October 17, 2016 to about 21:30 of the same day. However, the court below acknowledged facts as stated in its reasoning, and it is insufficient to recognize that the defendant interfered with the victim's restaurant business from October 27, 2016 to 21:04 of the same day.
Considering this part of the facts charged, it was found that the defendant was innocent.
The lower court’s determination of not guilty of part of the facts charged to the extent identical to the facts charged, merely constitutes a violation of the principle of no and unfavorable treatment.
The prosecutor's argument of misapprehension is without merit.
(a) h.