사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 700,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (unfair sentencing) by the court below is too unreasonable. The punishment (amounting to KRW 700,000) imposed by the court below is too unreasonable.
2. Crimes for which judgment of ex officio by decision without prison labor or heavier punishment has become final and the crimes committed before such decision has become final and conclusive fall under concurrent crimes provided for in the latter part of Article 37 of the Criminal Act. In such cases, punishment shall be imposed in consideration of the equality in cases where a crime among concurrent crimes provided for in Article 39 (1) of the Criminal Act has not been adjudicated and a crime for which judgment has become final and conclusive concurrently
Where there are several previous convictions which serve as the basis for concurrent crimes in the latter part of Article 37 of the Criminal Act, equity should be taken into account when a judgment is rendered at the same time with respect to all of such final convictions. In the application of statutes, the mere omission of some of such final convictions cannot be deemed as failure to take account of equity (see Supreme Court Decision 2005Do9678, Mar. 23, 2006). Furthermore, if it is recognized that part of such final convictions has not been examined, it shall be deemed that the above consideration of equity is not fully taking into account (see Supreme Court Decision 2008Do209, Oct. 23, 2008). According to the records of this case, the Defendant was sentenced to a suspended sentence of imprisonment with prison labor for six months at the Changwon District Court on May 26, 2016 and the above judgment became final and conclusive by the court on June 3, 2016; ② the Defendant was sentenced to a suspended sentence of imprisonment with prison labor for four months or more than six months.
Therefore, the crime of fraud of this case is established as follows: ① the judgment becomes final and conclusive; ② the relation of concurrent crimes between criminal records and the latter part of Article 37 of the Criminal Act, and thus, the equity between the judgment and the case of concurrent crimes is considered in accordance with the main sentence of Article 39(1) of the Criminal Act.