A defendant shall be punished by imprisonment for not less than eight months.

The sentence of the court below is too unreasonable.

According to the evidence duly adopted and examined by the court below, the defendant was sentenced to a suspended sentence of three years on June 3, 2016 by the Seoul Northern District Court on May 26, 2016 for fraud by using computers, etc. (hereinafter “the first final judgment”) and the judgment became final and conclusive on June 29, 2018 by the same court as of June 29, 2018 after being sentenced to a suspended sentence of two years for special intimidation (hereinafter “the second final judgment”), and the judgment became final and conclusive on November 16, 2018 (hereinafter “the second final judgment”), on the other hand, since the fact that the crime of the second final judgment is low prior to the date of the final and conclusive judgment, the crime of the second final judgment constitutes a case where the judgment cannot be sentenced simultaneously with the crime of the first final judgment after the date of the final and conclusive judgment.

Nevertheless, the court below erred by misapprehending the legal principles under Article 39(1) of the Criminal Act that sentenced punishment in consideration of the crime of final and conclusive judgment and equity in accordance with Article 39(1) of the Criminal Act with regard to the crime of this case committed after the date of final and conclusive judgment of the court below was rendered.

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

【Discrimined Judgment】 The summary of facts constituting an offense and evidence recognized by the court is identical to the description of each corresponding column except for changing the part of “a summary order” to “a summary order” under Article 369 of the Criminal Procedure Act, and thus, the summary of facts constituting an offense and evidence acknowledged by the court below is cited as it is.

Application of Statutes

1. Driving under Articles 148-2(1)1 and 44(1) of the former Road Traffic Act (Amended by Act No. 16037, Dec. 24, 2018) regarding criminal facts.