도로교통법위반(음주운전)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
However, the above punishment shall be imposed for two years from the date this judgment becomes final and conclusive.
1. The sentence of the court below (two years of suspended execution in August, and one hundred and sixty hours of community service order) is too unhued and unreasonable.
2. From among the instant crimes, the crime of violation of the Road Traffic Act among the crimes of this case, is a crime falling under Articles 148-2 (1) 1 and 44 (1) of the Road Traffic Act, and the statutory penalty is a imprisonment of not less than one year but not more than three years, or a fine of not less than 5 million won but not more than 10 million won, and thus, in order to sentence a punishment of less than one year to a defendant who does not have any legal grounds for mitigation, a discretionary mitigation should have been made pursuant to Articles 53 and 55 (1) 3 of the Criminal Act.
Nevertheless, the lower court, however, rendered a sentence of eight-month imprisonment with prison labor exceeding the scope of the applicable sentencing with omission of such discretionary mitigation, making it impossible to maintain the lower judgment in this respect.
3. Accordingly, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing, on the ground that the above ground for ex officio reversal exists, and the judgment below is again decided as follows
Criminal facts
The summary of the evidence and the facts charged against the defendant recognized by the court and the summary of the evidence are the same as the corresponding column of the judgment of the court below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant provisions of Article 148-2 (1) 1, and Article 44 (1) of the Road Traffic Act concerning the facts constituting a crime (the point of a sound driving) and subparagraph 1 of Article 152 of the Road Traffic Act and Articles 152 and 43 of the Road Traffic Act;
1. Articles 40 and 50 of the Criminal Act of the Commercial Concurrent Crimes;
1. Selection of imprisonment with prison labor chosen;
1. Articles 53 and 55 (1) 3 of the Criminal Act for discretionary mitigation;
1. Article 62 (1) of the Criminal Act;
1. The reasons for sentencing under Article 62-2 of the Social Service Order Criminal Act are as follows: (a) the Defendant was under the influence of alcohol in 2008 and 2012; and (b) the Defendant was under the influence of a fine due to drunk driving andless driving in 2013; and (c) the Defendant was under the influence of alcohol.