사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
However, for a period of two years from the date this judgment becomes final and conclusive.
1. The summary of the grounds for appeal (one year of imprisonment and two years of suspended execution) declared by the court below is too unhued and unreasonable.
2. Determination
A. We examine ex officio prior to determining the grounds for appeal by the prosecutor.
B. In light of the language, legislative intent, etc. of the latter part of Articles 37 and 39(1) of the Criminal Act, in cases where a crime for which no judgment has become final and conclusive cannot be judged concurrently with the crime for which judgment has become final and conclusive, it is reasonable to interpret that the punishment shall not be imposed concurrently in consideration of equity and equality, or the punishment shall not be mitigated or exempted.
(see, e.g., Supreme Court Decision 2012Do9295, Sept. 27, 2012).
According to the evidence and records duly adopted and examined by the court below, ① the defendant was sentenced on May 18, 2006 to a suspended sentence of two years for a crime of fraud at the Incheon District Court on May 26, 2006 (2006 highestest975), and ② the defendant was sentenced to a suspended sentence of one year for a crime of fraud at the Incheon District Court on April 23, 2008 (2) and was sentenced to a suspended sentence of two years for a crime of fraud at the Incheon District Court on May 1, 2008 (2006 highestest 4460), and ② the crime of the above previous offense was committed committed before the day when the judgment becomes final and conclusive, and the court below recognized the fact that the defendant was sentenced to a suspended sentence in consideration of equity between the crime of the previous offense and the case of the judgment.
However, each of the crimes of this case is ① the crime committed after the day when the judgment of the previous conviction became final and conclusive, and ② the crime of the previous conviction was committed before the day when the judgment of the previous conviction became final and conclusive, and thus, each of the crimes of this case and the crime of the previous conviction was committed before the day when the judgment of the previous conviction was made,
Therefore, under Article 39(1) of the Criminal Act, the court below sentenced punishment for each of the crimes of this case in consideration of equity in the case of a judgment concurrently with the crime of previous offense.