사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, the above punishment for a period of two years from the date this judgment becomes final and conclusive.
1. The decision of the court below on the gist of the grounds of appeal (the imprisonment of six months, the suspension of execution of two years, and the community service time of 80 hours) is too unfased and unreasonable.
2. Examination ex officio prior to the judgment on the grounds for appeal by the Prosecutor.
The appellate court shall judge on the grounds included in the grounds for appeal, but it may decide ex officio on the grounds that adversely affected 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 the amount of punishment unreasonable” (Article 361-5 subparag. 15 of the same Act), and the grounds that affect the judgment are not included in the grounds for appeal, but are subject to the appellate court’s trial even if they are not included in the grounds for appeal, and it is not limited that the appellate court may not determine the sentence more favorable to the defendant than the first deliberation sentencing if only the prosecutor appealed.
Therefore, prior to the public prosecutor’s judgment on the grounds for appeal that the sentence of the first instance is unfair because the sentence of the court of appeals is too unfortunate and unfair, the court of appeals may ex officio decide whether there exist any grounds to recognize that the sentencing is unfair. In the event that there exist such grounds, the court of appeals may reverse the first instance judgment and determine and sentence a minor sentence rather than the sentencing of the first instance judgment (see Supreme Court Decision 2008Do1092, Dec. 9, 2010). In light of the above legal principles, in the instant case, the amount obtained by the Defendant is not 15 million won, but the Defendant agreed that the amount acquired by the Defendant was reached in the first instance trial, and the Defendant was able to divide his mistake into the victim’s depth.
In addition, considering the defendant's age, occupation, sex, motive and circumstance of the crime, circumstances after the crime, etc., the sentence of the court below is too unreasonable.
Therefore, the judgment of the court below was no longer maintained.
3. Accordingly, the court below's decision on the ground that the above reasons for reversal are justified.