[특수강도,강도강간][공1989.7.1.(851),940]
In the case of discretionary mitigation of life imprisonment, whether the sentence of an indeterminate sentence is imposed on a juvenile (negative)
According to Article 54(1) of the former Juvenile Act, when a juvenile commits a crime corresponding to a limited term of two or more years, a sentence of imprisonment and a short term shall be imposed within the scope of the statutory term. As such, as long as the court selects a limited term of imprisonment among several statutory punishments, it may not be sentenced to a sentence of imprisonment for a limited term even in cases where a juvenile is sentenced by discretionary mitigation.
Article 54(1) of the Juvenile Act
Supreme Court Decision 83Do210 Decided April 26, 1983, 85Do318 Decided April 23, 1985, Supreme Court Decision 88Do501 Decided May 24, 1988
Defendant
Defendant
Attorney Advisor et al.
Gwangju High Court Decision 88No675 delivered on February 23, 1989
The appeal is dismissed.
The number of detention days after an appeal shall be included in the calculation of the original sentence.
1. Judgment on the ground of appeal No. 1 by a private defense counsel and the ground of appeal by a public defense counsel
If the evidence adopted by the court of first instance by the court below is examined by comparing it with the records, it cannot be deemed that there was a violation of the rules of evidence against the rules of evidence in the court below's judgment that found the defendant guilty of robbery, rape, and it cannot be deemed that there was a violation of the rules of evidence against the rules of evidence, and it is obvious that the defendant did not have or lacks the ability to distinguish things under the influence of alcohol at
2. Determination on the second ground for appeal by a private defense counsel
In a case where a juvenile committed a crime punishable by imprisonment for a maximum term of two years or more, the term and a short term shall be determined and sentenced within the scope of the statutory term (Article 54(1) of the former Juvenile Act). As such, in a case where the court selects imprisonment for life among several statutory punishments, as long as it imposes a limited term of imprisonment, it cannot be sentenced as a juvenile even if it imposes a limited term of imprisonment (see Supreme Court Decision 88Do501, May 24, 198). The arguments are to criticize the judgment of the court of first instance maintained by the court below on the premise that the court of first instance has selected a limited term of punishment among the statutory penalty,
3. Judgment on the Defendant’s grounds of appeal
Examining various circumstances, such as the Defendant’s age, character and conduct, intelligence and environment, relationship between victims, motive, means and consequence of each offense, and circumstances after the commission of the offense, etc., even when considering the circumstances asserted by the Defendant, the determination of the sentence of the first instance court maintained by the lower court cannot be deemed to be appropriate, and there is no reason to view that the determination of the sentence is extremely unfair. Thus, there is no reason to support the conclusion of the judgment.
4. Therefore, the defendant's appeal shall be dismissed, and part of detention days after the appeal shall be included in the original sentence of the judgment of the court of first instance. It is so decided as per Disposition by the assent of all participating
Justices Lee Jae-sung (Presiding Justice)