정보통신망이용촉진및정보보호등에관한법률위반
The judgment of the court below is reversed.
The defendant shall be exempted from punishment.
1. The summary of the grounds for appeal (the suspended sentence of a fine of one million won) declared by the court below is too unhued and unreasonable.
2. Ex officio determination
A. Prior to the judgment on the grounds for appeal by the prosecutor, the prosecutor examined ex officio prior to the judgment on the grounds for appeal by the prosecutor, and the prosecutor added “additional charges” as stated in the first head of the facts charged in the instant case, and applied for the amendment of indictment to add “Articles 37 and 39(1) of the Criminal Act” to applicable provisions of the Act, and since this court permitted it, the judgment of the court below is no longer maintained in this respect.
(Additional Facts of Facts) “The Defendant of criminal records was sentenced to one year of imprisonment with prison labor for an offense of false accusation at the District Court of the Republic of Korea on June 26, 2018, and the judgment became final and conclusive on November 20, 2018, and on September 30, 2019, the District Court of the Republic of Korea sentenced two years of suspension of execution to seven months of imprisonment with prison labor for an offense of obstruction of performance of official duties, etc., and the judgment became final and conclusive on December 17, 2019.”
B. In addition, under Article 39(1) of the Criminal Act, where a sentence is imposed for a crime which has not been adjudicated among the latter part of Article 37 of the Criminal Act, the punishment of “the crime for which a judgment to be sentenced to imprisonment without prison labor or heavier punishment has become final” under the latter part of Article 37 of the Criminal Act is included in “the previous crime for which a suspension of qualification or heavier punishment has been imposed” under the proviso of Article 59(1) of the Criminal Act (see, e.g., Supreme Court Decisions 2010Do931, Jul. 8, 2010; 2018M1, Apr. 10, 2018). In addition, the Defendant had the previous conviction under the latter part of Article 37 of the Criminal Act, and thus, constitutes “a person who has been sentenced to a suspension of qualification or heavier punishment,” and thus, it is impossible to suspend the sentence of a fine for the Defendant
In this respect, the judgment of the court below shall be reversed.
3. The judgment of the court below on the ground of the above reasons for ex officio reversal is against the prosecutor's allegation of unfair sentencing.