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(영문) 대구지방법원 2016.05.27 2014노4834
사기등
Text

All judgment of the court below shall be reversed.

Defendant No. 1 and No. 2-B of the judgment of the first instance court, and No. 2.

Reasons

1. Summary of grounds for appeal;

A. Each sentence (the first instance judgment: the fine of KRW 10 million for the crimes of KRW 10 million as indicated in the holding, and the fine of KRW 2 million for the crimes of KRW 200,000 for the crimes of KRW 2 as indicated in the holding, and KRW 10,000 for the second instance: the fine of KRW 10,000 for the crimes of KRW 2 as indicated in the holding) imposed by the public prosecutor is too unfford and unreasonable.

B. Each sentence sentenced by Defendant 1’s original sentence is too unreasonable.

2. Ex officio determination

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

B. As the Defendant filed each appeal against the lower judgment, each of the appeals cases was consolidated in the first instance trial.

In this regard, as long as the judgment of the court of first instance that sentenced the suspension of the execution of ten months of imprisonment for fraud against the defendant among each of the criminal facts revealed by the judgment below becomes final and conclusive after May 31, 2012, crimes No. 1 and No. 2-B of the judgment of the court of first instance, and the second decision of the judgment of the court of second instance are in a concurrent relationship under the former part of Article 37 of the Criminal Act, it shall be judged simultaneously and sentenced to a single punishment. In this regard, the parts of the judgment of the court of first instance concerning each of the above criminal crimes cannot be maintained any more

(c)

In light of the latter part of Article 37 and the text, legislative purport, etc. of Article 39(1) of the Criminal Act, if a crime for which judgment has not yet become final and conclusive cannot be judged concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that the relationship of concurrent crimes cannot be established after Article 37 of the Criminal Act and that the sentence cannot be imposed or the sentence cannot be mitigated or exempted in consideration of equity and the case where a judgment is to be rendered simultaneously pursuant to Article 39(1)

Article 38 of the Criminal Act is applicable to the concurrent crimes under the former part of Article 37 of the Criminal Act among several crimes, as if there is no final and conclusive judgment, on the ground that the crimes committed before the final and conclusive judgment could not be judged concurrently with the crimes for which judgment became final and conclusive, where several crimes for which one has not yet been adjudicated are committed before and after the final and conclusive judgment becomes final and conclusive.

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