특수절도등
The judgment of the court below is reversed.
Defendant shall be punished by imprisonment with prison labor for one year and by a fine of one hundred thousand won.
The above fine shall be imposed on the defendant.
1. The lower court found the Defendant not guilty on the grounds of larceny against Victim N in the instant facts charged, and found the Defendant guilty of unlawful use of motor device and bicycle in relation to the crime. The Prosecutor appealed on the guilty portion only for the reason of sentencing unfair, and did not appeal as to the portion not guilty.
In such a case, the portion of innocence as well as the portion of acquittal on the grounds of indivisible principle is brought to the trial court. However, since the part of innocence was already out of the object of attack and defense between the parties, it cannot be judged again by the court (see, e.g., Supreme Court Decisions 2004Do5014, Oct. 28, 2004; 2009Do12934, Jan. 14, 2010). Therefore, the conclusion of the judgment below as to the portion of innocence on the grounds above shall be followed, and it shall not be determined separately by the trial court at the same time.
2. The summary of the grounds for appeal that the court below imposed on the defendant (one year of imprisonment, two years of suspended execution, observation of protection, community service, 80 hours of fine, one million won of fine) is too uneasy and unreasonable.
3. We examine ex officio the grounds for appeal by the prosecutor ex officio.
In the trial of the party, the prosecutor applied the law to the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) among the facts charged in the instant case. Article 3(1) and Article 2(1)3 of the Punishment of Violences, etc. Act, Article 257(1) and Article 30 of the Criminal Act, “Articles 258-2(1), 257(1), and 30 of the Criminal Act” shall be construed as “Article 258-2(1), 257(1), and 30 of the Criminal Act,” and the name of the crime as “a violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)” to “special injury.” This court permitted this and thereby, the applicable law has been amended, etc., and the remaining crimes and the sentence shall be imposed on one of the concurrent crimes under the former part of Article 37 of the Criminal Act.