도로교통법위반(음주운전)등
The defendant's appeal is dismissed.
1. Summary of grounds for appeal;
A. Although the Defendant was under the influence of alcohol at the time of the instant assault and obstruction of business, the Defendant had weak ability to discern things or make decisions, the lower court erred by misapprehending the ability.
B. The lower court’s sentence of unreasonable sentencing (fine 6 million won) is too unreasonable.
2. Determination
A. According to the record as to the claim of mental disability, the defendant may be found to have been drunk at the time of the crime of this case, even though the defendant was drunk prior to the act of assault and obstruction of duty, in light of various circumstances, such as the background, means and method of the crime of this case, and the behavior of the defendant before and after the crime, it is not deemed that the defendant lacks the ability to discern things at the time of the crime, and thus, the above argument by the defendant is rejected.
B. Under the Korean Criminal Procedure Act, which takes the trial-oriented principle and the direct principle on the assertion of unfair sentencing, there exists a unique area of the first instance court concerning the determination of sentencing, and in light of the ex post facto and in-depth nature of the appellate court, it is reasonable to respect the first instance court’s sentencing in cases where there is no change in the conditions of sentencing compared to the first instance court, and the first instance court’s sentencing does not deviate from the reasonable scope of the discretion. Although the first instance court’s sentencing falls within the reasonable scope of the discretion, it is desirable to reverse the first instance court’s judgment and to refrain from imposing a sentence that
(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). In accordance with the foregoing legal doctrine, there is no change in the conditions of sentencing compared with the lower court on the grounds that new sentencing materials have not been submitted in the examination and trial.
In addition, all of the sentencing factors shown in the records and arguments of this case are considered.