도로교통법위반(음주운전)등
All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for a term of one year and two months.
1. Summary of grounds for appeal;
A. Defendant (Defendant 1)’s punishment (one year of imprisonment with prison labor) is too unreasonable.
B. The prosecutor (the second instance court’s order)’s punishment (the imprisonment of 2 years, the community service order of 120 hours, the 24 hours’ compliance instruction, and the 40 hours’ alcohol treatment instruction) of the lower court is too unfasible and unfair.
2. Prior to the judgment on the grounds of ex officio appeal, the decision of the court below was examined ex officio, and after the defendant filed each appeal against the judgment below, the application for consolidated examination of land jurisdiction was filed with the Supreme Court.
Accordingly, the Supreme Court decided that each of the above appeals cases should be consolidated and tried by this court.
However, the judgment of the court below against the defendant should be sentenced to a single punishment pursuant to Article 38(1) of the Criminal Act in relation to each of the concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below cannot be maintained any more.
Meanwhile, according to the records of this case, the Defendant was sentenced to a suspended sentence of two years on February 16, 2017 at the Daejeon District Court on February 8, 2017 for a violation of road traffic law (drinking), and the said judgment became final and conclusive on February 16, 2017.
However, in the second instance judgment against the defendant, the crime of violation of the Road Traffic Act (drinking driving) and the latter part of Article 37 of the Criminal Act are concurrent crimes with the above crime of violation of the Road Traffic Act (drinking driving) which became final and conclusive, and the crime of violation of Article 39 (1) of the Criminal Act should be sentenced to punishment for the crime of the second instance judgment in consideration of equity in the case of concurrent judgment pursuant to the first part of Article 39 (1) of the Criminal Act
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 unfair argument of sentencing, and the judgment below is reversed, and it is again decided as follows.
【Grounds for a new judgment】 Facts constituting an offense and the summary of evidence recognized by the court.