beta
(영문) 대법원 2016.05.12 2016도3761

특수강도등

Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Examining the reasoning of the lower judgment as to the common grounds of appeal by the Defendants in light of the evidence duly admitted by the lower court and the first instance court, the lower court’s determination that the Defendants guilty of the special robbery among the facts charged in this case on the grounds stated in its reasoning is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the degree of intimidation in a special robbery

In addition, in a written judgment, a judge’s signature and seal is affixed (Article 41 of the Criminal Procedure Act), but the signature and seal of the judge is not necessary to affix the copy of the judgment served on the defendant (see Supreme Court Decision 2007Do3060, Jun. 28, 2007). Therefore, the Defendants’ ground of appeal that there was an error of omission of the signature and seal of the judge in the first instance trial and the judgment of the court below on a different premise is not acceptable.

Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, a final appeal may be filed on the grounds of unfair sentencing. As such, in this case where a more minor sentence has been imposed against the Defendants, the allegation that the amount of punishment is unfair is not legitimate

2. Article 38(1)2 of the Criminal Act, which is a provision regarding the grounds for appeal by Defendant A when concurrent crimes are adjudicated simultaneously, “in the event the punishments specified for each crime are of the same kind, other than death penalty or imprisonment with or without prison labor for life, the maximum term or maximum amount for the most severe crime, which shall be increased by one half thereof, but shall not exceed the total of the maximum term or maximum amount of the punishments specified for each crime, although the punishments specified for each crime

Since the grounds of appeal by Defendant A on a different premise are stipulated as ", the grounds of appeal by Defendant A cannot be accepted."

3. As to the grounds of appeal by the defendant AZ