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(영문) 서울고등법원 2020.09.17 2020노795
살인미수등
Text

All judgment of the court below is reversed.

Defendant shall be punished by imprisonment for not less than two years and six months.

2.2.2.20 per cent of the amount seized.

Reasons

1. The summary of the grounds for appeal (e.g., imprisonment with prison labor and two years and six months, confiscation) imposed by the first instance court and the second instance court’s sentence (six months of imprisonment) are too unreasonable.

2. Prior to the judgment on the grounds for appeal, the first and second judgments were rendered ex officio prior to the judgment on the grounds for appeal, and the first and second judgments were rendered against the defendant, each of which was appealed by the defendant, and the court rendered a decision to concurrently examine the above two cases of appeal.

However, since the first and second judgment against the defendant is in a concurrent crime relationship under the former part of Article 37 of the Criminal Act, one punishment should be imposed pursuant to Article 38(1) of the Criminal Act, the first and second judgment cannot be maintained as it is.

3. If so, the judgment of the court below Nos. 1 and 2 is reversed, and the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows.

【Grounds for the Judgment of the Supreme Court which has been written] The criminal facts and summary of the evidence recognized by the court are identical to the facts constituting the crime in the first and the second original judgment, and thus, they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant provisions of the Criminal Act and Articles 258-2 (1), 257 (1) (a) and 257 (1) of the Criminal Act concerning criminal facts, Article 366 of the Criminal Act, Articles 254 and 250 (1) of the Criminal Act concerning the commission of criminal facts, the choice of punishment for a limited term of imprisonment, and Article 136 (1) of the Criminal Act (the occupation of obstruction of performance of official duties and the choice of imprisonment);

1. Articles 25 (2) and 55 (1) 3 of the Criminal Act (the occupation of attempted murder) of the Criminal Act to be legally mitigated;

1. Aggravation of concurrent crimes as prescribed in the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act;

1. Reasons for sentencing under Article 48 (1) 1 of the Criminal Act;

1. Two years of imprisonment with prison labor in the scope of punishment by law;

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