사기등
All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
except that from the date of this judgment.
1. The summary of the grounds for appeal (unfair sentencing: 2 years of imprisonment with prison labor for each crime of fraud and 8 months of confiscation, confiscation, and second instance of imprisonment with prison labor for each crime of violation of the Electronic Financial Transactions Act are too unreasonable.
2. We examine ex officio prior to judgment on the grounds for ex officio appeal.
A. The judgment of the court below in the first and second instances against the defendant was rendered, and the defendant filed an appeal against it, and this court decided to hold the two appeals together for a trial.
Each crime of the first and second judgment against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act, and a single sentence shall be imposed in accordance with Article 38(1) of the Criminal Act. As such, the first and second judgment of the court below cannot be maintained.
B. In addition, the charged facts of this case include a violation of the Electronic Financial Transactions Act. According to Article 2 subparag. 7 of the Act on Corporate Governance of Financial Companies (hereinafter “Act”), Articles 5 subparag. 37 and 27(3) of the Enforcement Decree of the Act on the Management of Financial Companies, the Electronic Financial Transactions Act constitutes “Acts and subordinate statutes prescribed by Presidential Decree relating to finance” under Article 32(1) of the Act on the Management of Financial Companies, but the provisions of separate review under Article 32(6) of the Act on the Management of Financial Companies apply only to the case where the defendant is the largest investor subject to examination of qualifications under Article 32(1) of the Act (see, e.g., Supreme Court Decision 2017Do20616, Mar. 15, 2018). In this case, there is no evidence to deem that the defendant falls under the subject of examination of qualifications under Article 32(1) of the Act on the Management of Financial Companies.
Examining these circumstances in light of the legal principles as seen earlier, since the Defendant does not fall under the subject of examination of eligibility under Article 32(1) of the Act on the Structure of Financial Control and thus the provisions of separate review and sentence under Article 32(6) cannot be applied, each crime in the judgment of the court below should be sentenced to one punishment in accordance with Article 38 of the Criminal Act.