경범죄처벌법위반
The judgment of the court below is reversed.
The defendant shall be exempted from punishment.
1. The sentence (exemption) that the court below rendered by the summary of the grounds for appeal is too unfasible and unfair.
2. Before the judgment on the grounds for appeal by the prosecutor ex officio, the reasoning of the judgment below and the record reveals that the Defendant committed the instant crime before the judgment (the first sentence) sentenced to imprisonment with prison labor for one year and a fine of 300,000 won by larceny, etc. at the Seoul Western District Court on October 16, 2018 became final and conclusive on March 15, 2019. However, the instant crime does not constitute a concurrent crime under the latter part of Article 37 of the Criminal Act, since the date and time of the instant crime and the date of the crime under the first sentence are separately sentenced to imprisonment with prison labor for 8 months by the Seoul Western District Court on February 12, 2015 and became final and conclusive on February 24, 2015 (the second sentence). Thus, the first sentence does not constitute a case where the judgment could have been simultaneously made on the instant crime, and it does not constitute a concurrent crime under the latter part of Article 37 of the Criminal Act.
Nevertheless, the court below rendered a sentence against the defendant in consideration of equity in cases where the defendant is judged simultaneously with the first sentence under Article 39(1) of the Criminal Act. The court below erred by misapprehending the legal principles on Article 39(1) of the Criminal Act, which affected the conclusion of the judgment.
In addition, since the second and the second crimes of this case which became final and conclusive are concurrent crimes under the latter part of Article 37 of the Criminal Act, the punishment for the crimes of this case shall be sentenced in consideration of the equity between the above crimes which become final and conclusive under Article 39(1) of the Criminal Act and the cases where the judgment
In this regard, the judgment of the court below is no longer maintained.
3. Accordingly, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's assertion of unfair sentencing, and the judgment below is reversed, and it is again decided as follows.
[Discied reasoning of the judgment below] Facts constituting an offense and summary of evidence recognized by the court, and summary of evidence, of the judgment below.