폭력행위등처벌에관한법률위반(집단ㆍ흉기등폭행)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
Sexual assault against the defendant for 80 hours.
1. According to the progress records of the case, the following facts are acknowledged.
A. On December 13, 2013, the Defendant was sentenced to imprisonment with prison labor for a maximum of four years and a short of three years for a violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) in Ulsan District Court 2013 Gohap 174 or 198 (Joint).
On the other hand, the defendant appealed on the ground that the punishment sentenced by the court below is too excessive and unfair.
B. On May 1, 2014, the appellate court reversed the judgment of the lower court, and sentenced the Defendant to a judgment against the Defendant for a short-term of three years, two years, etc. (hereinafter “instant judgment subject to a retrial”), and the said judgment subject to a retrial became final and conclusive on May 9, 2014.
(c)
On December 11, 2015, the Defendant requested the instant retrial. On March 24, 2016, this Court rendered a decision to commence the retrial on the grounds that there are grounds for retrial stipulated in Article 47(4) of the Constitutional Court Act in the judgment subject to retrial.
After that, there was no legitimate filing of appeal within the appeal period, and the decision to commence the new trial became final and conclusive as it is.
2. The decision of the court below on the summary of the grounds for appeal (the imprisonment with prison labor for a maximum of four years and a short of three years) is too unreasonable.
3. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
In the trial of the party, the prosecutor applied for the amendment of the Act on the Punishment of Violences, etc. (a group, deadly weapon, etc.) to "special assault" among the names of the crimes against the defendant, and "Articles 3 (1), 2 (1) 1, and 260 (1) of the Punishment of Violences, etc. Act, and Article 260 (1) of the Criminal Act" in the applicable law to "Article 261 and Article 260 (1) of the Criminal Act," respectively, and this court changed the subject of adjudication following the permission. The above crime was concurrent crimes between the remaining crimes of the defendant and Article 37 of the Criminal Act, and thus, one sentence should be imposed pursuant to Article 38 (1) of the Criminal Act. In this regard, the judgment of the court below cannot be maintained.
4. The judgment of the court below is correct.