특정경제범죄가중처벌등에관한법률위반(사기)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
However, for a period of four years from the date this judgment becomes final and conclusive.
Summary of Grounds for Appeal
Defendant
The punishment sentenced by the court below against the defendant (two years and six months of imprisonment) is too unreasonable.
The punishment sentenced by the court below to the defendant (two years and six months of imprisonment) is too unhued and unfair.
Judgment
A. The sentencing is based on the statutory penalty, and the discretionary determination is made within a reasonable and reasonable scope, taking into account the factors constituting the conditions for sentencing as prescribed in Article 51 of the Criminal Act.
However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the judgment of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing in the course of the first instance sentencing review and the sentencing criteria, etc., or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing review.
In the absence of such exceptional circumstances, the first instance court's sentencing should be respected in principle unless there are such exceptional circumstances.
(see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). (B)
In light of the above legal principles, even if the defendant borrowed money from the victim, he presented a false receipt, etc. even though he was unable to comply with the promise to repay the money, and considering the contents of the crime of this case that acquired it by borrowing 3.6 billion won, the sentencing conditions favorable to the defendant, that is, the defendant does not appear to have used the borrowed money acquired by the crime of this case individually, and the defendant is divided by recognizing his own crime, and the crime of this case has become final and conclusive.