도로교통법위반(음주운전)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. The sentence of the court below (six months of imprisonment) is too unreasonable.
2. Ex officio determination of the crime of this case is a crime falling under Articles 148-2 (1) 1 and 44 (1) of the Road Traffic Act and statutory penalty is a imprisonment with prison labor for not less than one year but not more than three years, or a fine not less than five million won but not more than ten million won. Thus, in order to sentence a sentence of imprisonment with prison labor for a defendant who does not have any legal grounds for mitigation, a discretionary mitigation should have been made pursuant to Articles 53 and 55 (1) 3 of the Criminal Act.
Nevertheless, the lower court, however, rendered a sentence of six-month imprisonment exceeding the scope of the applicable sentencing with omission of such discretionary mitigation, thereby making it impossible to maintain the lower judgment in this respect.
3. Accordingly, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the ground that the above ground for ex officio reversal exists, and the judgment below is again decided as follows
Criminal facts
The summary of the evidence and the facts charged against the defendant recognized by the court and the summary of the evidence are the same as the corresponding column 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 Article of the Act on Criminal Facts, Articles 148-2 (1) 1 and 44 (1) of the Road Traffic Act, the choice of punishment, and the choice of imprisonment;
1. The reason for sentencing under Articles 53 and 55(1)3 of the Criminal Act for discretionary mitigation is that the Defendant was committed by committing the instant crime, and the Defendant did not repeat the crime in the future while disposing of the vehicle driven, and the distance operated under the influence of alcohol is relatively short, and there are no circumstances that may be considered in light of the circumstances, such as the following: (a) the Defendant’s family and the person with his family and the person with his family are moving to the Defendant while leading the Defendant; (b) there is a family member to support; and (c) there is no good health.