사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 500,000.
The above fine shall not be paid by the defendant.
1. The gist of the grounds for appeal is that the court below's postponement of the sentence against the defendant is unlawful, even though the defendant was the subject of the suspended sentence. The court below's suspension of sentence against the defendant (the 500,000 won suspended sentence) is too uneasible and unfair.
2. A person who has been sentenced to the suspension of qualification or heavier punishment shall not be sentenced to the suspension of qualification or heavier punishment (proviso of Article 59(1) of the Criminal Act). Here, the term “previous conviction” refers to a criminal history of which suspension of qualification or heavier punishment is sentenced, and the validity of such punishment shall be interpreted as not asking.
Therefore, under Article 65 of the Criminal Act, a person who was sentenced to a suspended sentence shall lose its effect after the lapse of the specified grace period without the invalidation or cancellation of the sentence.
Even if there is no legal effect of the sentence, and there is no fact that there was a sentence of punishment. Thus, it should be deemed as a person who was subject to the suspended sentence under the proviso of Article 59(1) of the Criminal Act (see, e.g., Supreme Court Decision 2003Do3768, Dec. 26, 2003). According to the records, the Defendant is a person who was sentenced to a suspended sentence for eight months in imprisonment for fraud at the Daejeon District Court on June 20, 2014, and thus, constitutes a person subject to the suspended sentence, since he/she was sentenced to a suspended sentence for two years in the period of imprisonment for
However, since the court below suspended the sentence against the defendant, it is erroneous in the misapprehension of legal principles as to the person who was subject to the suspended sentence, which affected the conclusion of the judgment.
3. The judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the prosecutor's unfair argument of sentencing, and the judgment of the court below is reversed, and the following is again decided after pleading.
【Grounds for the Judgment of the Supreme Court】 Facts constituting a crime and summary of evidence recognized by the court are stated in the corresponding column of the reasoning of the judgment below.