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(영문) 대법원 2017.01.12 2016도17834
특정경제범죄가중처벌등에관한법률위반(수재등)
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. According to the records on the grounds of Defendant A’s appeal, Defendant A appealed against the judgment of the first instance, and only asserted that the sentencing was unfair on the grounds of appeal.

In such a case, the argument that the lower court erred by misapprehending the facts as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (such as Acceptance of Money and Valuables) due to the receipt of money and valuables around November 3, 2014 among the facts charged against Defendant A cannot be a legitimate ground for appeal.

Meanwhile, the grounds of appeal that point out on the grounds of appeal alone are in violation of Article 5(4)1, (1), and (5) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012) and Article 5(4)1, (1), and (5) are contrary to the principle of proportionality between responsibility and punishment, and it cannot be deemed unconstitutional since the balance of the punishment system and the principle of equality are contrary to the principle of equality.

In addition, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for more than ten years is imposed, an appeal may be filed on the grounds of unfair sentencing. As such, in this case where a minor sentence is imposed against Defendant A, the argument that the amount of punishment is unfair is not a legitimate ground for appeal.

2. As to the grounds for appeal by Defendant B, the allegation that the lower judgment did not properly consider the grounds for sentencing constitutes an unfair sentencing.

Therefore, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal is permitted based on unfair grounds for sentencing. As such, in this case where Defendant B was sentenced to minor punishment, the argument that the determination of punishment is unfair is not a legitimate ground for appeal.

3. On the grounds for Defendant D’s appeal, the first instance court maintained the reasoning of the lower judgment.

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