교통사고처리특례법위반
The judgment of the court below is reversed.
Defendant shall be punished by imprisonment without prison labor for ten months.
However, the period of two years from the date this judgment becomes final and conclusive.
1. The summary of the grounds for appeal (the imprisonment without prison labor for 10 months, the suspension of execution for 2 years, the community service work and the order to attend a lecture for 40 hours) of the lower court is deemed to be too unfunied and unreasonable;
2. The appellate court shall decide on the grounds included in the grounds for appeal, and it may decide ex officio on the grounds that have an effect on the judgment (Article 364(1) and (2) of the Criminal Procedure Act). Meanwhile, the grounds for appeal include “when there is any reason to recognize that the amount of punishment is unreasonable” (Article 361-5 subparag. 15 of the same Act), and as above, the grounds that affect the judgment are not included in the grounds for appeal, and it does not include any limitation that the appellate court may decide on the amount of punishment more favorable to the sentencing of the first instance if only the prosecutor appealeds the appeal.
Therefore, prior to the public prosecutor’s judgment on the grounds for appeal that the sentence of first instance is unfair because the sentence of first instance is excessive so that it is unfair, the court of appeals may ex officio decide whether there exists any reason to acknowledge that the sentencing is unfair. In the event of such reason, the court of appeals may reverse the judgment of first instance and determine and sentence a minor sentence rather than the sentencing of first instance (see, e.g., Supreme Court Decisions 80Do2097, Nov. 11, 1980; 2008Do1092, Dec. 9, 2010). In this case, only the public prosecutor appealed for the reason that the sentencing was unfair, and the defendant did not file an appeal. However, the court ex officio examined the public prosecutor’s unfair judgment on the grounds for sentencing based on the foregoing legal doctrine.
The defendant suffered an irrecoverable loss, such as an indivating disorder, etc., due to the negligence of the victim, and the suffering that the victim and the family members of the victim should suffer is serious.
However, there are the following favorable circumstances for the defendant.
Defendant’s negligence is serious.
subsection (b) of this section.
The defendant is in the first instance.