[존속상해·강제추행등피고사건][고집1978형,99]
In the case of the misunderstanding of legal principles as to concurrent crimes
In the event of a prosecution against the defendant due to the injury by force or by force, the more severe punishment is the crime of injury by force, and thus, the application of the law is erroneous in the application of concurrent crimes with punishment prescribed in the crime of injury by force or the aggravation of concurrent crimes with punishment prescribed in the crime of injury by force.
Articles 37, 38, 50, 257, and 298 of the Criminal Act
Supreme Court Decision 4292 Form 998 Decided April 27, 1960 (Supreme Court Decision 8-50, Supreme Court Decision 38(3)1250 of the Criminal Act)
A
Jeonju District Court (77Gohap52) in the first instance trial
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
One hundred and sixty days of detention days before the sentence of the original judgment shall be included in the above sentence.
The first ground for appeal by the defendant is that the court below affected the judgment by misunderstanding the facts and admitting the guilty of each charges, and even if the second ground for appeal is not that, the court below's sentencing is too unreasonable.
Therefore, when comparing the evidence duly admitted by the court below with the records, the defendant can be found to have committed each crime at the time of original judgment. Therefore, this issue is without merit.
However, as in the case of this case, in the case of concurrent crimes, the punishment prescribed for each crime under Articles 38(1)2 and 50 of the Criminal Act should be aggravated by one half of the maximum term of the punishment prescribed for the most severe crime if the punishment is of the same kind. Thus, each crime against the defendant, namely, violation of the Act on the Punishment of Bodily Injury, Violence, etc. (Violation of Article 2(2) of the same Act), indecent act by compulsion, violence, and intimidation, which is the most serious crime from each of the crimes of this case, should be the concurrent crime as to the crime, and it is obvious in the record that the court below committed concurrent crimes as to the crime of minor indecent act by compulsion (Article 298 of the Criminal Act). Therefore, it is reversed by the judgment of the court below without judging the grounds for appeal of unfair sentencing by the defendant, and it is therefore recognized as the evidence and evidence of the defendant as follows.
The application of Acts and subordinate statutes: Article 257(2) and (1) of the Criminal Act shall apply to the injury by surviving a person under Articles 1 and 7 as stated in the judgment below; Article 260(1) of the Criminal Act shall apply to the second assault of the judgment; Article 260(2) of the Criminal Act shall apply to the third assault of the judgment; Article 257(1) of the Punishment of Violences, etc. Act; Article 257(1) of the Criminal Act shall apply to the fourth assault of the judgment; Article 298 of the Criminal Act Article 283(1) of the Criminal Act; Article 6 of the judgment of the court below shall be Article 319(1) of the Criminal Act; Article 257(2) and 7 of the Punishment of Violences, etc. Act shall be included in the term of imprisonment with prison labor for the remaining crimes except for the crimes of Articles 1 and 17 of the judgment; Article 260(2) of the Criminal Act shall be included in the term of imprisonment with prison labor for the remaining crimes of Article 30(2) of the Criminal Act.
It is so decided as per Disposition with the above reasons.
Judges next Full-Time (Presiding Judge) Kim Jong-he