beta
(영문) 대구고등법원 2019.08.12 2019노175

사기등

Text

The guilty part of the judgment of the court of first instance and the judgment of the court of second instance shall be reversed.

A defendant shall be punished by imprisonment for two years.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of facts (as to the facts charged in the judgment of the court below in 2018Dahap41), all of the facts charged are erroneous in the judgment of the court below that found Defendant 1 guilty. (1) In relation to each of the violence, the court below erred by misapprehending the following facts. (2) In relation to each of the violence, the Defendant used the victim AV on or around January 2016, not around August 2015, and used the victim AV on or around February 2016, and did not assault the victim AV times of the victim AV on or after the fact that the part of the victim AV was sent to cellular phone at the BR coffee shop. (2) In relation to the violence and coercion, the Defendant obtained the victim AV’s consent in sight or prepared a written confirmation of assignment of claims with the victim AV’s credit for the purpose of securing the claim against the victim AV, and there was no unfair sentencing in the judgment of the court below. (2) Imprisonment with prison labor (No more than 1 year and 2 years 12).

B. According to the evidence submitted by the prosecutor of mistake of facts (as to the acquittal portion of the judgment of the court of first instance), even if the defendant borrowed money from the victim AU but did not have the intent or ability to repay, the defendant can be recognized that he/she, if he/she borrowed money to operate the BC restaurant, he/she would repay it three months after he/she would have paid it. The judgment of the court of first instance which acquitted this part of the facts charged, is erroneous in the misapprehension of facts. 2) The sentence (one year and six months of imprisonment) sentenced by the court of first instance (as to this part of the judgment of the court of first instance) of unfair sentencing,

2. The Court rendered ex officio reversal and examination of each appeal case against the judgment below.

Since each crime in the judgment of the court below is a concurrent crime under the former part of Article 37 of the Criminal Act, one punishment should be sentenced in accordance with Article 38(1) of the Criminal Act, there is a ground for reversal ex officio.

However, the defendant and prosecutor's assertion of mistake is still subject to the judgment of this court despite the reasons for ex officio destruction.