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(영문) 춘천지방법원 강릉지원 2019.08.08 2019노164
특수절도등
Text

All judgment of the court below shall be reversed.

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

Reasons

1. Summary of grounds for appeal;

A. The lower court’s sentence of unfair sentencing (Article 1: 8 months of imprisonment and 2 months of imprisonment: 4 months of imprisonment) is too unreasonable.

B. The Defendant was under the influence of alcohol at the time of committing the instant assault, and was in a state of mental disorder or mental disability.

2. We examine ex officio the grounds for appeal prior to the judgment ex officio.

The first and second original judgments were sentenced to each of the defendants, and the defendant filed an appeal against them, and this court decided to hold a joint hearing of the above two cases of appeal. Since each of the crimes against the defendant in the first and second original judgments is concurrent crimes under the former part of Article 37 of the Criminal Act and should be sentenced to one sentence under Article 38(1) of the Criminal Act, the first and second original judgments cannot be maintained as they are.

However, despite the above reasons for ex officio reversal, the defendant's assertion of mental disability still is subject to the judgment of this court, and this will be examined below.

3. In light of the background, means and method of the instant assault crime, and the conduct before and after the instant assault crime, etc. acknowledged by the evidence duly adopted and examined by the lower court to determine the Defendant’s mental and physical disorder, the Defendant was drinking at the time of the instant assault crime.

Even if so, it does not seem that there was a lack or loss of the ability to discern things or make decisions.

Therefore, the defendant's mental disorder is without merit.

4. Accordingly, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again decided as follows, after hearing.

【Criminal facts alleged in the judgment of multiple court】 Summary of criminal facts and evidence, as well as summary of evidence.

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