특정경제범죄가중처벌등에관한법률위반(사기)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
1. The sentence imposed by the court below (three years of imprisonment) is too unreasonable.
2. According to the records of ex officio determination, the Defendant, at the Seoul Western District Court on January 23, 2015, sentenced 8 months of imprisonment for fraud and 2 years of suspended execution to the effect that the said judgment became final and conclusive on March 6, 2015 as the withdrawal of the Defendant’s appeal.
However, since the crime of fraud and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) for which judgment has become final and conclusive are concurrent crimes under the latter part of Article 37 of the Criminal Act, the punishment shall be determined after considering equity and the mitigation or exemption of punishment pursuant to Article 39(1) of the Criminal Act. Since the application of the law of the judgment of the court below is omitted in the process of concurrent crimes,
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, and the judgment below is again decided as follows after oral argument.
Criminal facts
The summary of the facts constituting an offense and the summary of the evidence acknowledged by the court below are as follows: “The defendant was sentenced to 8 months of imprisonment for fraud at the Seoul Western District Court on January 23, 2015 and 2 years of suspended execution, and the judgment became final and conclusive on March 6, 2015,” and the summary of the evidence is the same as the corresponding column of the judgment of the court below in addition to using “1. partial statement of the defendant in the court room” in the summary of the evidence as “1. The part of the court room of the defendant was written in the court room of the defendant on January 23, 2015,” and thus, it is cited in accordance with Article 369 of the Criminal Procedure
Application of Statutes
1. Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (wholly amended by Act No. 11304, Feb. 10, 2012) is applicable to the pertinent criminal facts and to select a sentence.