도로교통법위반(음주측정거부)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for not more than ten 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 grounds for appeal (one hundred months of imprisonment) is too unreasonable.
2. The defendant has already been a criminal record of the same kind.
The Defendant did not know himself while being tried by the lower court due to the instant violation of the Road Traffic Act (refluence of drinking), and committed the instant non-exclusive driving without permission. This is an unfavorable circumstance to the Defendant.
However, although the defendant has a record of being punished twice due to drinking driving, he/she is punished in 2005 and 2008, and he/she is punished before 10 years.
There is no previous record on the defendant's two-time punishment due to the above drinking driving, and the one-time punishment due to the driving without a license in 2005.
The Defendant disposed of the instant vehicle, and did not repeat again while living for about three months in custody.
There are many things.
This is the circumstances favorable to the defendant.
In full view of such circumstances as the defendant's age, environment, sexual conduct, motive for the crime, and circumstances before and after the crime in this case and the arguments, the sentence of the court below is somewhat unreasonable.
3. In conclusion, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act on the grounds that the defendant's appeal is with merit, and the judgment below is ruled again after pleading as follows.
【Grounds for a new judgment】 The facts constituting a crime and summary of evidence recognized by the court are identical to the facts stated in each corresponding column of the judgment below. Thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant Article of the Act and Articles 148-2 (1) 2 and 44 (2) of the Road Traffic Act (a point of refusing to measure drinking), Article 152 subparagraph 1, and Article 43 of the Road Traffic Act (a point of refusing to drive without a license) concerning facts constituting an offense, and the choice of imprisonment, respectively;
1. The former part of Article 37 of the Criminal Act, and Articles 38 (1) 2 and 50 of the same Act, which aggravated concurrent crimes;
1. Articles 53 and 55 of the Criminal Act for mitigation of amount;