특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
Provided, That the above punishment shall be imposed for four years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. Although the lower court sentenced the Defendant to two years of imprisonment with prison labor and four years of suspended execution, the lower court sentenced the Defendant to two years of imprisonment. In so doing, the lower court erred by misapprehending the legal doctrine, thereby violating the principle of prohibition of disadvantageous alteration.
B. The lower court’s sentence on the Defendant is too unreasonable.
2. In the case subject to review of legal principles, even though a suspended sentence of imprisonment was sentenced in the case subject to review, the sentence of imprisonment is more severe than the original judgment in the case subject to review, and the suspended sentence is contrary to the principle of prohibition of disadvantageous alteration under Article 439 of the Criminal Procedure Act. Thus, the Defendant’s sentence of imprisonment with prison labor, the main sentence of which is minor than the original judgment, which sentenced the suspended sentence in the retrial case, becomes final and conclusive after having been sentenced to imprisonment with prison labor for another case after the judgment subject to review and became final and conclusive, shall not be permitted as it constitutes a case unfavorable to the Defendant (see Supreme Court Decision 2016Do1131, Mar. 24, 2016). In light of the foregoing legal principles, the lower court’s sentence against the Defendant’s violation of the principle of prohibition of the suspended sentence under Article 29 of the Criminal Procedure Act by being sentenced to imprisonment with prison labor for two years and four years in the case subject to review by the Seoul Northern District Court on January 30, 2015.
Therefore, the defendant's assertion is justified, and the court below erred by misapprehending the legal principles.
3. As such, the Defendant’s assertion of the misapprehension of the legal principle is with merit, and thus, the judgment on the Defendant’s assertion of unfair sentencing is omitted.