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(영문) 부산고등법원 2019.09.05 2018노657
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for ten years.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the original judgment (the sentence of the first instance court: imprisonment with prison labor for 11 years, and 10 months) is unreasonable as the defendant (the sentence of the second instance court: imprisonment with prison labor for 11 years and 10 months) is too unreasonable.

B. The second sentence of the court below against the prosecutor (the second sentence against the judgment of the court below) is deemed unreasonable.

The prosecutor appealed against the judgment of the court below of the second instance, and argued the misapprehension of the legal principle as the grounds for appeal in relation to the infringement of private documents, but the court of the second instance allowed the prosecutor's application for modification of the indictment during the sixth trial, and withdrawn the above misapprehension

2. Ex officio determination

A. The judgment of the court below in the first and second instances against the consolidated defendant was rendered, and the defendant filed an appeal against all the judgment of the court below in the first and second instances, and the prosecutor filed an appeal against the judgment of the court of second instance, and the court of appeal decided to hold a joint hearing of each of the above appeals cases.

Each crime of the judgment below against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act (the crime of uttering of forged official document and the crime of uttering of falsified official document). Since one punishment should be imposed pursuant to Article 38(1) of the Criminal Act, the judgment of the court below cannot be maintained as it is.

B. The amendment of the indictment to the indictment was made in the trial of the first instance, and the “exercise of the indictment documents” was added to the name of the crime against the facts charged in the first instance trial, and the “Articles 234 and 231 of the Criminal Act” was added to the applicable provisions of the Act, and the first and second indictments were applied for the amendment of the indictment

This Court's permission was changed to the subject of the adjudication.

(In this respect, the lower court’s judgment (the changed charges of the lower court’s change) is no more than 5% of the loans with the name lending fee around April 2015 while the Defendant was employed as a contractual worker in extraordinary civil service in the victim C (president D) located in the Busan Seo-gu, Busan around December 20, 2014.

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