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(영문) 인천지방법원 2016.06.15 2016노1287
도로교통법위반(무면허운전)등
Text

The judgment of the court below is reversed.

The sentence of sentence shall be suspended for the defendant.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) that the court below rendered on the defendant is too unreasonable. The punishment (amounting to KRW 1,000,000) is too unreasonable.

2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant for an ex officio judgment.

A. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Articles 18(2) and (3), and 19(1) of the Enforcement Rule of the same Act provide that where the location of the defendant cannot be confirmed after the lapse of six months from the date of receipt of the report on the failure to serve on the defendant in the trial proceedings in the first instance court, and where the location of the defendant is not verified even though he/she took necessary measures to confirm the location of the defendant, service to the defendant shall be made by public notice.

However, according to the records of this case, the court below decided on December 6, 2013 that the service of the defendant's writ of summons was to be made by the method of public disclosure on May 23, 2014, which was clearly able to be served more than six months from the time, despite the receipt of the report that the defendant's writ of summons was not served due to the uncertainty of the director, and the service of the defendant was not yet served on May 23, 2014. Such decision of the court below is unlawful in violation of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Since the judgment of the court below can no longer be maintained in this respect.

B. Meanwhile, according to the records, on May 14, 2015, the Defendant was sentenced to a suspended sentence of two years for a violation of the Military Service Act at the Incheon District Court on June 2, 2015, and the judgment became final and conclusive on May 22, 2015. On September 25, 2015, the Seoul Southern District Court sentenced ten months of imprisonment for fraud, etc. and the judgment became final and conclusive on October 3, 2015. As such, each of the above crimes and each of the instant crimes for which the judgment became final and conclusive are concurrent crimes under Article 39(1) of the Criminal Act in relation to the latter part of Article 37 of the Criminal Act, and the sentence for each of the instant crimes ought to be imposed in consideration of equity and the concurrent crimes under Article 39(1) of the Criminal Act.

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