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(영문) 부산고등법원 (창원) 2015.11.11 2015노281
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
Text

We reverse the judgment of the court below.

A defendant shall be punished by imprisonment for a term of one year and nine months.

Reasons

1. Summary of grounds for appeal;

A. The punishment (one year and six months of imprisonment) of the judgment of the court of first instance is too unreasonable.

B. The punishment of the lower court’s second instance judgment (two years of imprisonment, three years of suspended execution, three years of probation, one hundred and twenty hours of community service, and forty hours of taking courses of cardio-mutical violent therapy) is too uneasy and unreasonable.

2. Determination ex officio prior to the determination of each of the above arguments on unfair sentencing by the defendant and the prosecutor.

The judgment of the court of first instance and the judgment of the court of second instance against the defendant were sentenced respectively, the defendant against the judgment of the court of first instance, and the prosecutor against the judgment of the court of second instance

However, this Court decided to hold a joint hearing of the above two appeals cases, and since the first and second judgments of the court below are concurrent offenses under the former part of Article 37 of the Criminal Act in relation to each of the offenses against the defendant, one punishment should be sentenced pursuant to Article 38(1) of the Criminal Act, the judgment of the court below cannot be maintained as it is.

3. Accordingly, the judgment of the court below is reversed under Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows, without examining the above assertion of unfair sentencing by the defendant and the prosecutor, on the grounds of ex officio reversal.

The criminal facts against the defendant and the summary of evidence recognized by the court as stated in the reasoning of the judgment which was used again following the reversal shall be as follows: five copies of the summary of evidence of the 2015 Mahap52 case in the column of evidence:

1. Chapter Seven:

1. Outpatients:

1. Except for the addition of a medical certificate and a written opinion, all of the judgment of the court below are the same as the combination of each corresponding column of the judgment of the court below, and they shall be quoted as it is in accordance with Article 369

Application of Statutes

1. Article 257(1) of the Criminal Act (the occupation of an injury and the choice of imprisonment), Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act as to the crime, the Criminal Act.

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