업무상횡령
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, the period of two years from the date this judgment becomes final and conclusive.
1. The decision of the court below on the gist of the reasons for appeal (six months of imprisonment) is too unreasonable.
2. According to the records of ex officio determination, the Defendant was sentenced to six months of imprisonment with prison labor on January 11, 2017 and two years of suspension of execution, and the above judgment became final and conclusive on January 19, 2017. As such, the crime of fraud for which judgment has become final and conclusive and the crime of this case in relation to the concurrent crimes of a group after Article 37 of the Criminal Act, shall be sentenced after considering equity and the mitigation or exemption of punishment pursuant to Article 39(1) of the Criminal Act.
Therefore, in the case of a trial, the prosecutor applied the provision of the law to add "Article 37 of the Criminal Code" to "Article 39 (1) of the Criminal Code," and the court permitted this.
In this respect, the judgment of the court below cannot be maintained as it is.
3. In conclusion, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's unfair argument about sentencing, and the judgment of the court below is reversed, and it is again decided as follows through pleading.
[Re-written judgment] The summary of the facts constituting a crime and the evidence admitted by the court below and the summary of the evidence are as follows: “The defendant was sentenced to six months of imprisonment with prison labor on January 11, 2017, two years of suspended execution, and the above judgment became final and conclusive on January 19, 2017,” and “1........... above, reply to inquiries, such as criminal history, and Defendant’s own trial statement” are as stated in each corresponding column of the judgment of the court below, except for addition of “a reply to inquiries, such as criminal history, etc.............. Defendant’s own trial statement” as it is in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant Article 356 of the Criminal Act, Articles 355 (1) and 355 of the Criminal Act, the choice of punishment for the crime, and the choice of imprisonment;
1. After Article 37 of the Criminal Act, Article 39 (1) of the same Act:
1. The former part of Article 37 of the Criminal Code, Article 38(1)2 of the Criminal Code, which increases concurrent crimes.