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(영문) 광주고등법원 2016.12.01 2016노422

공직선거법위반등

Text

The prosecutor's appeal is dismissed.

Reasons

1. “One act” as referred to in Article 40 of the Criminal Act concerning the assertion of misunderstanding the legal principles as to the number of crimes means that an act in light of social norms is assessed as a natural condition of an object, regardless of the legal evaluation.

(see, e.g., Supreme Court Decisions 86Do2731, Feb. 24, 1987; 2005Do10233, Feb. 23, 2007). According to the evidence duly adopted and examined by the lower court, it is recognized that the Defendant was unable to proceed with the debate for about three minutes by stating that he/she was the very large interest in his/her speech while speaking by the society, thereby hindering the progress of the debate, and by causing an insulting speech to the victim.

Examining these circumstances in light of the legal principles as seen earlier, it is right and proper that the Defendant’s act is evaluated as one act in light of social concept, and therefore, the offense of insult in this case shall be deemed as having a relation of commercial concurrence with the offense of the Public Official Election Act

We affirm the judgment of the court below to the same purport.

There is no error in the misapprehension of legal principles as to the number of crimes as alleged by the prosecutor.

We do not accept the prosecutor's assertion.

2. Compared to the judgment of the court below on the assertion of unfair sentencing, there is no change in the sentencing conditions, and the sentencing of the court below is not beyond the reasonable scope of discretion, it should be respected.

(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). In this case, no new sentencing data was submitted by this court and no particular change exists in sentencing conditions compared to the original judgment.

In addition, even if all the grounds for sentencing specified in the oral argument are gathered, it is difficult to readily conclude that the sentencing of the court below is too unfluent and beyond the reasonable scope of discretion.

The prosecutor’s assertion disputing the propriety of sentencing of the court below is not acceptable.

3. The final appeal is dismissed on the ground that it is without merit.