도로교통법위반(음주운전)등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 10,000,000.
The above fine shall not be paid by the defendant.
1. The sentence (12 million won) declared by the lower court on the gist of the grounds of appeal is too unfased and unreasonable.
2. Determination ex officio is a crime falling under Articles 148-2(1)1 and 44(1) of the Road Traffic Act, and the statutory penalty for a violation of the Road Traffic Act is an imprisonment with prison labor for not less than one year but not more than three years, or a fine not less than ten million won but not more than ten million won. The violation of the Road Traffic Act (unlicensed driving) is a crime falling under Articles 152 subparag. 1 and 43 of the Road Traffic Act, and the statutory penalty is imprisonment with prison labor for not more than one year or a fine not exceeding three million won.
Where a single act constitutes several crimes, such crimes constitute the ordinary concurrent crimes under Article 40 of the Criminal Act, and thus, the punishment provided for the most severe crime among the two crimes should be imposed. Therefore, the punishment provided for a more severe crime of violation of the Road Traffic Act should be imposed.
As such, the court below sentenced the defendant to a fine exceeding 10 million won, which is the upper limit of the fine prescribed for the crime of violating the Road Traffic Act (drinking driving), and sentenced to a fine exceeding 12 million won, so the judgment below cannot be maintained any further because it erred by violating the upper limit of the statutory penalty.
3. As such, the judgment of the court below is reversed ex officio pursuant to Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's improper assertion of sentencing, and the judgment below is reversed, and it is again decided as follows through pleading.
Criminal facts
The summary of facts and evidence recognized by the court is the same as the corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Article 148-2 (1) 1 and Article 44 (1) of the Road Traffic Act concerning facts constituting an offense; Article 152 subparagraph 1 and Article 43 of the Road Traffic Act (unlicensed Driving)
1. Articles 40 and 50 of the Criminal Act of the Commercial Competition;
1. Selection of an alternative fine for punishment;
1.Article 70(1) and (2) of the Criminal Act to attract a workhouse.