[한국마사회법위반][공2007.8.15.(280),1328]
Whether a case of claiming grounds for mitigation of punishment constitutes “a more severe crime than a crime recognized by the original judgment” under Article 420 subparag. 5 of the Criminal Procedure Act (negative)
Article 383 subparagraph 3 of the Criminal Procedure Act provides that "when there is a reason for requesting a retrial," "when there is a reason for requesting a retrial," and Article 420 subparagraph 5 of the same Act provides that "when there is a new evidence to acknowledge a crime more severe than the crime recognized by the original judgment, not guilty or acquittal against a person who has been sentenced to a punishment, or exemption from punishment or acquittal against a person who has been sentenced to a punishment, is newly discovered" as one of the grounds for retrial, "when there is a clear evidence to acknowledge a crime less severe than the crime recognized by the original judgment," "a crime more severe than the crime recognized by the original judgment" is separate from the crime recognized by the original judgment,
Article 383 subparag. 3 and Article 420 subparag. 5 of the Criminal Procedure Act
[Plaintiff-Appellee] 96Mo51 dated January 13, 1997 (Gong1997Sang, 688)
Defendant
Defendant
Attorney Park Han-young
Suwon District Court Decision 2007No792 Decided April 19, 2007
The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Since the defendant asserted only unfair sentencing as a ground for appeal in the court below, the court of final appeal may not assert the violation of the rules of evidence, incomplete deliberation or misapprehension of legal principles as
2. Regarding ground of appeal No. 2
Article 383 subparagraph 3 of the Criminal Procedure Act provides that "when there is a reason for requesting a retrial," "when there is a reason for requesting a retrial," and Article 420 subparagraph 5 of the same Act provides that "when there is a new evidence to acknowledge a crime more severe than the crime recognized by the original judgment, not guilty or acquittal against a person who has been sentenced to a punishment, or exemption from punishment or exemption from punishment against a person who has been sentenced to a punishment, is newly discovered." In this context, "a crime more severe than the crime recognized by the original judgment" means a crime separate from the crime recognized by the original judgment, and the statutory punishment of which is minor (see Supreme Court Order 96Mo51, Jan. 13, 1997, etc.). Therefore, the requisite for a retrial does not include a ground for mitigation of a punishment for a case
As asserted in the grounds of appeal, even if the defendant sells and manages the private horse tickets, not the "total liability" but the "solicitation for the purchase of marina tickets and delivery of marina tickets" is not changed to the co-principal of the violation of the Korean Racing Association Act due to the act of similar auction recognized by the court below, and even if the defendant is a principal offender, it is merely a reason for the necessary mitigation of punishment pursuant to Article 32 (2) of the Criminal Act. Thus, the judgment of the court below cannot be reversed pursuant to Articles 383 (3) and 420 (5) of the Criminal Procedure Act.
3. Conclusion
Therefore, the appeal shall be dismissed and the number of days of detention after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Hwang-sik (Presiding Justice)