사기미수
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.
1. Summary of grounds for appeal;
A. Defendant 1) Since the victim of mistake of facts embezzled the deposited money received by the Defendant, and accordingly, the Defendant has the right to claim the return of the embezzled money against the victim, filing a lawsuit seeking the return of the money cannot be said to have attempted to deceiving the court. 2) The sentence of unfair sentencing (six months of imprisonment) by the lower court is too unreasonable.
B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.
2. Prior to the judgment on the assertion of unfair sentencing by the Defendant and the prosecutor ex officio, according to evidence duly adopted and investigated by the lower court and the trial court: (a) the Defendant, before and after the instant crime, filed a non-discriminatory complaint under the name of the crime such as larceny, embezzlement, assault, accusation, rape, etc. while expressing the proper mind to not only the victim C but also the public defenders, etc. who are not related to the instant case; and (b) the Medical Treatment and Custody Director notified the Defendant of the result of his mental appraisal that the Defendant was presumed to have been in a state of weak ability to distinguish things or make decisions due to the mental disorder at the time of the instant crime; and (c) in light of the background, means and methods of the instant crime, and the circumstances before and after the instant crime, etc., the Defendant was suffering from the mental disorder at the time of the instant crime, and thus, could not be said to have been capable of changing things or making decisions, but could be found to have lacking such ability.
In addition, since this constitutes a reason for the necessary mitigation of punishment pursuant to Article 10(2) and (1) of the Criminal Act, the judgment of the court below which neglected it can no longer be maintained.
However, despite the above reasons for ex officio destruction, the defendant's assertion of mistake is still subject to the judgment of this court.