도로교통법위반(무면허운전)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for four months.
However, the period of two years from the date this judgment becomes final and conclusive.
1. The main point of the grounds for appeal is that the lower court’s punishment (four months of imprisonment) is too unhued and unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal by the ex officio judgment.
The court of appeals shall adjudicate on the grounds included in the grounds for appeal: Provided, That it may adjudicate ex officio on the grounds that have influenced the judgment, even if such grounds are not included in the grounds for appeal.
On the other hand, the reasons for appeal include “when there is a reason to acknowledge that the amount of punishment is unreasonable,” and such reason that affects the judgment is not included in the reasons for appeal, but is not subject to the appellate court’s trial, and there is no limitation that the appellate court may not determine the sentence more favorable to the sentencing of the first trial when only the prosecutor appealed.
Therefore, prior to the prosecutor’s judgment on the grounds for appeal that the first instance sentence is too unfasible and unfair, the court of appeals may ex officio decide whether there exists any reason to acknowledge that the sentencing is unfair. In the event of such reason, 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, e.g., Supreme Court Decision 2008Do1092, Dec. 9, 2010). The Defendant has the power to be punished five times by driving without a license.
However, the defendant is against the charge and is punished for driving without a license in the most recent year in 2008.
In addition, in full view of the various circumstances, including the Defendant’s age, sex, environment, occupation, and circumstances after the crime, the lower court’s punishment is unreasonable.
Therefore, the judgment of the court below can no longer be maintained.
3. As such, the judgment of the court below is reversed ex officio. Thus, without examining the prosecutor's unfair argument about sentencing, Article 364 (2) of the Criminal Procedure Act is applicable.