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(영문) 광주고등법원 2020.04.09 2019노455

아동ㆍ청소년의성보호에관한법률위반(강간)등

Text

The judgment below

The part of the defendant's case shall be reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

(b) the defendant;

Reasons

1. Summary of grounds for appeal;

A. The sentencing of the lower court by the Defendant and the person against whom the attachment order was requested (hereinafter “Defendant”) is too unreasonable.

B. The lower court’s sentencing is too uneasible and unreasonable.

2. Judgment on the grounds for appeal ex officio concerning the accused case shall be examined ex officio.

According to the case search data and each judgment, the Defendant, at the Gwangju District Court on July 24, 2019, sentenced to a suspended sentence of three years on July 24, 201 to one year and six months, for fraud, can be recognized as having become final and conclusive on November 8, 2019.

According to the above facts of recognition, since the crime of fraud for which judgment has already become final and conclusive and each of the crimes of this case are concurrent crimes under the latter part of Article 37 of the Criminal Act, the punishment shall be determined after examining whether to reduce or exempt the punishment in consideration of equity in the case of concurrent judgment under Article 39(1) of the Criminal

Therefore, among the judgment below that did not take such measures, the part of the defendant case cannot be maintained any longer.

3. In a case where a prosecutor files an appeal against a prosecuted case regarding the case claiming an attachment order, the appeal is deemed to have been filed against the case claiming the attachment order (Article 9(8) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders). However, the petition of appeal and the statement of grounds of appeal submitted by the prosecutor are not stated in the grounds of appeal regarding the case claiming an attachment order, and the records of the case are not examined.

Therefore, the prosecutor's appeal regarding the part of the judgment below's request for attachment order is without merit.

4. Since the judgment of the court below as seen earlier on the part of the defendant's case, the court below reversed the part of the defendant's case pursuant to Article 364 (2) of the Criminal Procedure Act without examining each of the grounds for reversal of unfair sentencing by the defendant and the prosecutor, and rendered another judgment

The judgment below

The part of the request for attachment order.