사기등
1. All the judgment below is reversed.
2. The offense described in Article 3 (4) of the High Court Decision 2013Da459 shall be committed against the defendant.
1. The summary of the grounds for appeal (in the first instance court: imprisonment with prison labor for a year and six months, and the second instance court: imprisonment with prison labor for a period of four months) of each court below is too unreasonable.
2. We examine ex officio the grounds for appeal by the defendant prior to the determination of ex officio.
A. The Defendant filed an appeal against each judgment of the lower court, and the trial concurrently examined the case.
However, according to the records, on February 5, 2013, the Defendant was sentenced to one year of imprisonment with prison labor for a crime of fraud, etc. at the Seoul Southern District Court for six months, which became final and conclusive on February 13, 2013 (hereinafter “the first judgment”). On July 5, 2013, the Incheon District Court sentenced two years of suspension of execution to eight months of imprisonment with prison labor for a crime of fraud, etc. and became final and conclusive on July 13, 2013 (hereinafter “second judgment”).
Therefore, among the crimes in the judgment of the first instance court, the crime in April 15, 2013 is "the crime in April 15, 2013."
Each crime of the judgment of the first instance court and each crime of the judgment of the second instance except the former shall be committed before the judgment of the first instance becomes final and conclusive, and in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, a single sentence shall be punished within the term or amount of punishment for aggravated concurrent crimes under Article 38(1) of the Criminal Act.
Therefore, each judgment of the court below can no longer be maintained.
B. Also, among the crimes in the judgment of the first instance court, the remainder except the crimes committed on April 15, 2013 is committed before the judgment of the first instance is finalized, and the crimes committed on April 15, 2013 are committed after the judgment of the first instance is finalized, and thus, Article 37 of the Criminal Act cannot be established, and the relationship between the former and the latter cannot be established, and ultimately, the punishment shall be separately determined and sentenced.
Nevertheless, since the judgment of the first instance court has been sentenced to a single sentence, the first instance judgment cannot be maintained in this respect.
3. Accordingly, the court below's decision on the defendant's assertion of unfair sentencing has a ground for ex officio reversal.