[폭력행위등처벌에관한법률위반][공1982.2.15.(674),190]
Where the appellate court reverses and renders a judgment of the appellate court on the ground that the appellate court has rendered a regular sentence against a minor, the sentence to be imposed on the defendant who has attained majority (=ordinary penalty)
Where the appellate court reverses and renders a judgment of appeal on the grounds that it was illegal that the appellate court has pronounced a regular sentence against a minor, if the defendant reaches the majority, the appellate court shall reverse the judgment of appeal and sentence a regular sentence.
Article 54 of the Juvenile Act
Defendant
Attorney Cho Jong-tae (Korean)
Seoul Criminal Court Decision 81No3189 delivered on July 24, 1981
Seoul Criminal Court Decision 81 Godan519 delivered on April 9, 1981
All the judgment of the court of first instance and the judgment of the court of first instance are reversed.
A defendant shall be punished by imprisonment for not less than eight months.
75 days under detention before sentencing in the first instance shall be included in the principal sentence.
The defendant's defense counsel's grounds of appeal are examined.
According to the judgment of the court below, the court below sentenced the defendant to a regular sentence of eight months by recognizing him as the defendant on July 15, 1961. The court below reversed the judgment of the court below on the grounds that the defendant's date of birth is specified as November 15, 1961 among the investigation data cards bound in Chapter 8 of the public trial records and the suspect examination records against the defendant of the public prosecutor, while the court below acknowledged the defendant's date of birth as equal to the defendant's date of birth in the indictment of the public prosecutor. However, without considering any consideration as to the above litigation data, the court below recognized him as an adult who was the 15th of July 1961 and applied the law to a regular sentence. In other words, the court below's judgment on this issue is reversed, and it is sufficient to judge by this case's records and the records examined by the court of first instance and the court of first instance pursuant to Article 396 of the Criminal Procedure Act.
According to the statement in the above mentioned litigation records, as the defendant was born on November 15, 1961 and it has been evident that he had already reached majority at the time of this judgment, he shall be sentenced to a regular sentence. Since the court of first instance sentenced the defendant to an irregular sentence, the judgment of the court of first instance is reversed ex officio and it is decided as follows.
The summary of this case's criminal facts and evidence is the same as the judgment of the court of first instance. Therefore, the summary of the criminal facts and evidence mentioned in the judgment of the court of first instance is cited in accordance with Articles 399 and 369 of the Criminal Procedure Act.
The application of Acts and subordinate statutes: Each judgment of the defendant shall be made by selecting a criminal sentence among the prescribed amounts under Articles 2(2) and (1) of the Punishment of Violences, etc. Act and Article 350(1) of the Criminal Act. Since there are criminal records constituting a repeated crime in the judgment, a repeated crime shall be added within the limit of the proviso of Article 42 of the Criminal Act in accordance with Article 35 of the Criminal Act. Since the above two crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, the punishment provided for in Articles 38(1)2 and 50 of the same Act against the victim with heavy criminal conduct within the limit of the proviso of Article 42 of the Criminal Act shall be limited to eight months, and seven-five days of the number of days pending the judgment of the court of first instance shall be included in the above principal sentence in accordance with Article 57 of the same Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jong-woo (Presiding Justice)