공무집행방해등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for not more than ten months.
except that, for two years from the date this judgment becomes final and conclusive.
1. The main point of the grounds for appeal is that the lower court’s imprisonment (ten months of imprisonment) is too unreasonable.
2. Before determining the grounds for appeal by the defendant ex officio, the court below sentenced the defendant to 10 months of imprisonment. However, the statutory penalty under Article 136(1) of the Criminal Act, which is the applicable provisions to the criminal facts against the defendant, is imprisonment for not more than five years or a fine not exceeding 10 million won, and the statutory penalty under Articles 148-2(1)2 and 44(2) of the Road Traffic Act is either imprisonment for not less than one year but not more than three years or a fine not less than five million won and not more than 10 million won.
Therefore, if the punishment is aggravated after the choice of imprisonment with prison labor for each of these crimes, the punishment is more severe, and the lower limit should be one year as provided in the Road Traffic Act violation(Refusal of measurement).
Therefore, even though it is possible to have sentenced to imprisonment for ten months with prison labor for the defendant, the court below sentenced a sentence beyond the scope of punishment without undergoing such a mitigation process, so the judgment of the court below can no longer be maintained.
3. The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the following is again decided upon without examining the defendant's assertion of unfair sentencing, on the grounds of ex officio reversal.
Criminal facts
The summary of the facts charged and the summary of the evidence recognized by the court are all the same as the corresponding columns of the judgment of the court below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant provisions of the Criminal Act and Articles 136(1) and 30 of the Criminal Act, Articles 148-2(1)2 and 44(2) of the Road Traffic Act and the choice of imprisonment for the crime;
1. Of concurrent crimes, the former part of Article 37 and Article 38(1)2 of the Criminal Act are applicable;