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(영문) 대전고등법원 2021.03.23 2020노365
사기등
Text

The defendant's appeal is dismissed.

The defendant shall pay 300,000 won to the applicant for compensation.

Reasons

The court below accepted each application for compensation filed by the defendant and the co-defendant A for compensation against the defendant C, D, F, G, H, I, J, K (L), M, N,O, P, Q, R, and S. In the event an appeal is filed against the guilty judgment, the confirmation of the compensation order is prevented and the part is also transferred to the appellate court (Article 33(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings). Thus, even if the defendant did not object to the compensation order part, the court below's acceptance of each application for compensation by the applicants was not finalized and it was transferred to this court.

However, the Defendant did not assert the grounds for appeal regarding the part of the compensation order, and even if examined ex officio, it cannot find the grounds for revocation or alteration thereof. Therefore, the part accepting the compensation order among the judgment below should be maintained as it is.

On the other hand, the court below rejected the applicant E’s application for compensation, and the judgment dismissing the application for compensation cannot file an objection pursuant to Article 32(4) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and this part of the application for compensation became final and conclusive immediately.

Therefore, the dismissal part of the judgment of the court below is excluded from the scope of adjudication of this court.

2. Improper sentencing on the gist of reasons for appeal: The sentence of the lower court (one and half years of imprisonment with prison labor for a maximum of one year and six months, and one year of short term) is too unreasonable.

3. In a case where there is no change in the conditions of sentencing compared to the first instance court, and where the sentencing of the first instance does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). Based on the foregoing legal doctrine, the lower court, based on the foregoing, committed fraud against the victims exceeding 100 persons among the Defendant and the joint Defendant A, during a considerable period of time, and the purpose of retaliation is to prevent the exercise of the State’s penal authority.

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