(영문) 서울중앙지방법원 2019. 12. 12. 선고 2019노2969, 3280(병합) 판결[사기·상해·업무방해·폭행·모욕][미간행]
Defendant
Both parties
Kim Ho-young, Shin Ho-ho (prosecutions), Park Park-young (public trial)
Attorney Lee Dong-hoon (Korean)
1. Seoul Central District Court Decision 2019Da1760 Decided September 5, 2019 (Supreme Court Decision 2019Da1760 Decided September 5, 2019 / 2. Seoul Central District Court Decision 2019Gohap1468 Decided September 26, 2019
We reverse the judgment of the court below.
The imprisonment with prison labor for the accused shall be determined by one year and two months.
1. Summary of grounds for appeal;
A. The defendant (e.g., unfair form)
The punishment of the lower court (the first instance court: one year and two months of imprisonment, and the second instance: the fine of three million won) is too unreasonable.
(b) An inspection;
The first instance court’s sentence is too uneasible and unfair.
2. Ex officio determination
The first and second original judgments against the defendant are sentenced to each of the above original judgments, and the prosecutor filed an appeal against each of the above original judgments, and this court decided to concurrently examine each of the above appellate cases. Each of the first and second original judgments against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act and thus, one of the original judgments is to be sentenced pursuant to Article 38(1) of the Criminal Act. Thus, the lower judgment cannot be maintained any more.
3. Conclusion
Since the first and second original judgment has grounds for ex officio reversal as seen above, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, and it is again decided as follows.
The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the corresponding part of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 347(1) of the Criminal Act (the point of fraud), Article 314(1) of the Criminal Act (the point of interference with business), Article 257(1) of the Criminal Act (the point of injury), Article 260(1) of the Criminal Act (the point of violence), Article 311 of the Criminal Act (the point of insult), the choice of each imprisonment sentence.
1. Aggravation for repeated crimes;
Article 35 of the Criminal Act
1. Aggravation for concurrent crimes;
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act
The favorable circumstances of ○: The defendant's confession is against the defendant. The degree of damage, such as the profits acquired by the defendant, is not significant.
○ Unfavorable Circumstances: Crimes have been committed during the period of the same repeated crime. There are many criminal records.
○ Other sentencing conditions, such as the age, character and conduct, environment, health condition, the background leading to the crime, means and result of the crime, shall be determined as ordered in consideration of all the circumstances after the crime.
Judges Kim Dong-dong (Presiding Judge)