경범죄처벌법위반
The judgment of the court below is reversed.
Defendant shall be punished by a fine of one hundred and sixty thousand won.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (misunderstanding of facts) is as follows: (a) even though the defendant's order had the alcohol, the victim had the wind to drink, and (b) the victim did not interfere with the main business of the victim by avoiding the disturbance.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
In other words, the case where only the defendant requested a formal trial against the trial shall be deemed not to have been sentenced to a heavier punishment than that of the trial by applying mutatis mutandis Article 457-2 of the Criminal Procedure Act pursuant to Article 19 of the Criminal Procedure Act (see Supreme Court Decision 98Do2550, Jan. 15, 199, etc.). However, according to the records of this case, the head of the Seoul Seongbuk Police Station filed a petition for an adjudication on November 7, 2016 on the charge of this case on the same day, and the Seoul Northern District Court sentenced the defendant to a fine of KRW 1.60,00 (the KRW 80,000 per day of conversion) on the same day, and only the defendant was dissatisfied with the request for formal trial on November 11, 2016, the court below sentenced the defendant to a fine of KRW 160,000 (the KRW 160,000, Jun. 14, 2017).
As such, if the amount of fine is equal to the amount of fine, but the period of detention in the workhouse is long, the sentence of the court below is more severe than that in the adjudication (see Supreme Court Decision 76Do3161, Nov. 23, 1976). In this regard, the judgment of the court below was no longer maintained.
However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court despite the above reasons for reversal of authority, and this is examined below.
B. The lower court’s judgment on the assertion of mistake of facts can be acknowledged by the evidence duly admitted and investigated by the lower court, i.e., the following circumstances: (i) the victim, from the investigative agency to the court of the lower court, took the beer directly, and brought a disturbance without complying with the request from the Defendant to the court of the lower court.