[폭력행위등처벌에관한법률위반·존속상해][공1985.6.15.(754),812]
When the punishment is to be imposed for concurrent crimes, the lowest sentence of the punishment provided for the most severe crime in the short term of the punishment provided for the most severe crime shall be applied.
With regard to the punishment of concurrent crimes, the main sentence of Article 38(1)2 of the Criminal Act provides that the punishment specified for each crime shall be increased by one half of the maximum term or maximum amount for the most severe crime in the event of the same kind of punishment other than death penalty, life imprisonment, or imprisonment without prison labor for life, and that the minimum term shall not be explicitly stated. However, in a case where the short term of the punishment specified for the most severe crime is heavier than the minimum term of the punishment specified for the most severe crime, the lesser minimum term shall be stated in light of the purport of the above provision
Article 38(1) of the Criminal Act
Defendant
Defendant
Attorney Lee Jin-hoon
The Army, High Military Court Decision 84Na141 delivered on September 20, 1984
The appeal is dismissed.
We examine the grounds of appeal.
1. As to the Defendant’s ground of appeal No. 1
According to the evidence of the first instance judgment maintained by the court below, the facts of the judgment against the defendant can be sufficiently recognized. Therefore, it cannot be said that there is any error of law due to misconception of facts against the rules of evidence.
After all, we cannot accept the argument because it is merely an error of evidence preparation and fact-finding which belongs to the exclusive jurisdiction of the court below.
2. As to the second ground for appeal by the defense counsel
The main text of Article 38(1)2 of the Criminal Act concerning the punishment for concurrent crimes provides that the punishment specified for each crime shall be aggravated by one half of the maximum term or maximum amount for the most severe crime, in cases where the punishment for the same crime is of the same kind, other than death penalty or imprisonment for life or imprisonment without prison labor for life, and that the total of the maximum term or maximum amount of the punishments specified for each crime shall not exceed the total of such maximum term or amount of the punishments specified for the most severe crime, and that the minimum term shall be stated as the lowest term in light of the purport of the above provision in the case where the minimum term of the punishment specified for the most severe crime is more than the minimum
In the same purport, the court below's decision that maintained the judgment of the court of first instance that maintained the defendant's judgment against the defendant by setting the minimum sentence of the punishment to the short-term punishment prescribed for the crime of injury by continuation of the crime of injury, is just and there is no error of law by misapprehending the scope of the punishment of the punishment. We cannot accept the argument.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices O Sung-sung(Presiding Justice)