도로교통법위반(음주운전)등
The judgment of the court below (excluding the dismissed part) and the second judgment shall be reversed.
The defendant shall be punished by imprisonment for two years.
1. On November 4, 2017, the lower court dismissed the prosecution on the charge of assault, among the facts charged in the case of 2018 Godan1927, and sentenced the remainder of the facts charged.
The defendant filed an appeal only against the guilty portion of the judgment of the court of first instance, and the dismissal of the above public prosecution was separated and finalized.
Therefore, the scope of this court's adjudication is limited to the remaining part of the judgment of the court of first instance except the dismissal of prosecution.
2. Summary of grounds for appeal;
A. The judgment of the court of first instance which found the defendant guilty of indecent act by compulsion of the victim's statement even though the defendant had attempted the victim I and did not commit an indecent act, is erroneous in misconception of facts or incomplete hearing as to the credibility of the victim's statement.
B. The lower court’s determination that rejected Defendant’s assertion of defense is erroneous in misapprehending the legal doctrine as to the establishment of self-defense, inasmuch as the assault against the victim J was committed by the victim as an indecent act committed by the Defendant and thereby, constitutes self-defense.
C. The sentence imposed by each court below on the defendant (the first instance court's imprisonment with labor for 2 years and the second instance court's imprisonment with labor for 6 months) is too unreasonable.
3. The judgment of the court below in the first and second instances was rendered to the defendant, and the defendant appealed against each judgment of the court below, and the court decided to hold the above two appeals together for a new trial.
Therefore, each of the first and second original judgments against the Defendant became concurrent crimes under the former part of Article 37 of the Criminal Act, and in such a case, a single sentence should be imposed in accordance with Article 38(1) of the Criminal Act. As such, the first and second lower judgment cannot be maintained in its entirety.
However, even if there are such reasons for ex officio destruction, the argument of mistake, misunderstanding of legal principles about the judgment of the court of first instance is still subject to the judgment of the court of this Court, and the propriety below is justified.