[1] In a case where both imprisonment and a fine should be imposed concurrently, whether to reduce the amount of imprisonment only (negative)

[2] In a case where the provision of discretionary mitigation is omitted with respect to discretionary mitigation while imposing both imprisonment and fine, the case holding that in a case where a fine sentenced to discretionary mitigation is required within the scope of discretionary mitigation and discretionary mitigation not within the scope of discretionary mitigation and discretionary mitigation, there is an error of law in the misapprehension of legal principle

[1] In a case where both punishment of imprisonment and a fine are to be imposed concurrently, it is unlawful to reduce the amount of punishment only by imprisonment, unless there is a special provision, and not to reduce the amount of a fine by discretionary reduction.

[2] In a case where the provision of discretionary mitigation is omitted in the case where the punishment of a fine is stated only in the imprisonment with prison labor and a fine, and the provision of discretionary mitigation is omitted, the case holding that there is an error of law in the misapprehension of legal principles in a case where the fine imposed is required within the scope of discretionary mitigation and discretionary mitigation

[1] Articles 53 and 55(1)6 of the Criminal Act / [2] Article 323 of the Criminal Procedure Act, Articles 53 and 55(1)6 of the Criminal Act

[1] Supreme Court Decision 76Do2012 delivered on September 14, 1976 (Gong1976, 9357)

Defendant

Defendant

Attorney Kim Jong-soo

Seoul District Court Decision 96No6866 delivered on December 10, 1996

The judgment of the court below is reversed and the case is remanded to the Seoul District Court Panel Division.

We examine the grounds of appeal.

1. Examining the evidence duly employed by the court of first instance by comparing it with the records, the court below's decision that recognized that the defendant provided medical treatment by putting patients suffering from the treatment of brut pain in a trade name, which is referred to as the Gold vertebrate Correction Movement Center, by putting them on a beds with brush, shoulder, brus, etc. on brus, is just, and the court below's decision that determined that the above act constitutes medical practice is just and acceptable. There are no grounds for the argument.

2. In a case where both punishment of imprisonment and a fine are to be imposed concurrently, unless there are special provisions, the punishment shall be mitigated only to imprisonment and the fine shall not be mitigated (see, e.g., Supreme Court Decisions 76Do2012, Sept. 14, 1976; 7Do1827, Jul. 26, 1977; 77Do1827, etc.). However, according to the applicable provisions of the judgment of the court of first instance, in a case where the court reduces the amount of a fine, the court does not ex officio state Article 55(1)6 of the Criminal Act that should be stated, and there is no ground for deeming that the first instance court reduced the amount of a fine (one year of imprisonment sentenced by the court of first instance and a fine of 300,000,000 won within the scope of discretionary mitigation on the fine, on the other hand, the maintenance of the judgment of the court of first instance has an error in the misapprehension of legal principles as to discretionary mitigation.

3. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)