Applicable law in case of discretionary mitigation;

Article 53 of the Criminal Code only stipulates that discretionary mitigation may be conducted, but there is no provision regarding the method and scope of mitigation. Therefore, if a punishment is imposed only on the method and scope of mitigation, it shall be applied to the method of mitigation as prescribed by applying Article 55 of the Criminal Code.

Articles 53 and 55 of the Criminal Act

Supreme Court Decision 64Do454 Decided October 28, 1964 (Supreme Court Decision 4151; Supreme Court Decision 12 ② ② 24 Decided summary of the summary of the Criminal Act, Article 53 ② 1258 pages)

Defendant

Seoul District Court (67Da18931)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One hundred and fifty days of detention days before the sentence of the original judgment shall be included in the above sentence.

The Defendant’s grounds of appeal for the final appeal for the Republic of Korea, including Non-Party 1 and Non-Party 2, for the purpose of speaking for a fighting with the intention to fight by excessively citing the fact that the main owner of the Central Central Central Republic of Korea, such as Non-Party 1 and Non-Party 1, at the original time and time. However, on the grounds that the victim Non-Party 2 called a fighting, the Defendant was in contact with the victim at the exhibition transition held by the Defendant, but the lower court recognized the Defendant intentionally, and the lower court seems to have erred in finding that the Defendant intentionally committed the fact that he was living in the future, taking into account the circumstances of the above crime as well as the fact that the Defendant’s home was living in good faith.

However, prior to the determination of the grounds for appeal by the defendant, the court below ex officio examined the grounds for appeal by the defendant, and it is obvious that Article 53 of the Criminal Act was applied to the application of the law, recognizing that the defendant has the grounds for considering the circumstances of the crime.

However, Article 53 of the same Act only provides for discretionary mitigation, but it does not provide for the method and scope of mitigation. Therefore, if a sentence is imposed only on the method and scope of mitigation, the court below's judgment which neglected it, despite the application of Article 55 of the same Act, affected the judgment because it was erroneous in the application of the law, and thus, it cannot be exempted from reversal in this regard. Thus, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act and it is again decided as follows.

The criminal facts and evidence of the defendant to be judged by this Court are the same as that of the judgment of the court below, and they are quoted in accordance with Article 369 of the same Act.

However, since the court below's judgment falls under Article 3 (1) of the Punishment of Violences, etc. Act and Article 257 (1) of the Criminal Act, since the defendant's judgment in the court below falls under the previous conviction of the court below, since Article 35 of the same Act is subject to heavy aggravation of repeated crime pursuant to Article 35 of the same Act and there are grounds to take into account the criminal circumstances such as motive for the crime in this case, etc., the defendant shall be punished by imprisonment for up to one year within the period of punishment reduced by discretionary mitigation pursuant to Articles 53 and 55 (1) 3 of the same Act, and 150 days from the number of detention days prior to the provisional sentence of the court below shall be included

It is so decided as per Disposition for the above reasons.

Judges Kim Ha-ho (Presiding Judge)