(영문) 수원지방법원 2009. 12. 24. 선고 2009노1386 판결[폭력행위등처벌에관한법률위반(공동상해)·업무방해][미간행]
Defendant
Prosecutor
Jeong Jae-ap
Suwon District Court Decision 2008 High Court Decision 2474 Decided March 19, 2009
The judgment of the court below is reversed.
The sentence of sentence against the defendant shall be suspended.
1. Summary of grounds for appeal;
The suspended sentence (the suspended sentence: 500,000 won) of the sentence against the defendant by the court below is too unfluent and unjust.
2. Ex officio determination
Before the prosecutor's judgment on the grounds for appeal, the records show that the defendant was sentenced on November 11, 2008 by the Suwon District Court for a violation of the Punishment of Violences, etc. Act (joint conflict), and the judgment became final and conclusive on November 19, 2008. Since each of the above crimes and each of the instant crimes committed by the defendant, for which the judgment became final and conclusive, are concurrent crimes under the latter part of Article 37 of the Criminal Act, the judgment of the court below did not reach such judgment even though the sentence is determined in consideration of equity in the case where each of the above crimes is concurrently judged under the former part of Article 39 (1) of the Criminal Act. In this respect, the judgment of the court below is no longer maintained.
3. Conclusion
Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal by the prosecutor, on the ground that there is a ground for ex officio reversal as seen above, and the judgment below is again ruled as follows.
The summary of the facts constituting the crime and its evidence acknowledged by this court is as follows: the defendant of the first instance judgment's criminal facts in the judgment below added "a person who was sentenced two years to a suspended sentence of imprisonment on November 19, 2008 due to a violation of the Punishment of Violences, etc. Act (joint conflict) at the Suwon District Court on November 11, 2008 and who became final and conclusive on November 19, 2008"; and except for addition "a copy of the judgment of 1.1" in the summary of the evidence as stated in each corresponding column of the judgment of the court below, and thus, it is cited as it is in accordance with Article 3
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 2(2) and (1)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act (the point of joint injury and the choice of fines), Articles 314(1) and 30 of the Criminal Act (the point of interference with business, the selection of fines)
1. Handling concurrent crimes;
The latter part of Article 37 and Article 39(1) of the Criminal Act
1. Aggravation for concurrent crimes;
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act
1. The type to be suspended;
Fines 500,000
1. Detention in a workhouse;
Articles 70 and 69(2)(50,000 won per day) of the Criminal Act
1. Suspension of sentence;
Article 59(1) of the Criminal Act
Although the nature of each of the crimes of this case is not minor, the sentence shall be suspended in consideration of equity in cases where each of the crimes of this case and the crime of violation of the Punishment of Violences, etc. Act (joint conflict) for which the judgment has become final and conclusive at the same time, and the sentence shall be imposed in consideration of all of the sentencing conditions of this case, such as the defendant's age, character and conduct, environment, and circumstances leading to the crime, etc.
Judges Kim Ho-ho (Presiding Judge)