(영문) 서울중앙지방법원 2015.03.27 2015노76

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(영문) 서울중앙지방법원 2015.03.27 2015노76

특정범죄가중처벌등에관한법률위반(절도)

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The judgment of the first instance is reversed.

A defendant shall be punished by imprisonment for two years.

Reasons

1. The sentencing of the first instance court (two years and six months of imprisonment) against the accused in the summary of the grounds for appeal (unfair punishment) is too unreasonable.

2. Before determining the grounds for appeal ex officio, prior to the determination of the grounds for appeal for ex officio determination, the prosecutor tried to examine the facts charged of this case as "Habitual larceny", and applied for amendment of the indictment to change the applicable provisions of this case to "Articles 332, 329, and 35 of the Criminal Act", and since this court permitted this, the judgment of the court of first instance could no longer be maintained.

3. In conclusion, the first instance judgment 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, without proceeding proceeding to decide on the Defendant’s assertion of unfair sentencing.

Criminal facts

The summary of the evidence and the facts charged against the defendant recognized by the court and the summary of the evidence are as shown in the corresponding column of the judgment of the court of first instance. Therefore, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article 332 of the Criminal Act and Articles 332 and 329 of the Criminal Act: Selection of imprisonment with prison labor;

1. The reason for sentencing under Article 35 of the Criminal Act among repeated offenders: (a) the fact that the defendant commits a repeated offense; (b) the theft against the defendant's prisons has been repeated for a long time; and (c) the crime of this case has not occurred for two months since the release; (b) the amount of damage; (c) the circumstances after the crime; (d) the majority larceny criminal record of the defendant; and (e) the health and family environment of the defendant.

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