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(영문) 창원지방법원 2016.02.04 2015노2847
강제추행등
Text

The part of the judgment of the court below excluding the dismissed part of the indictment, and the judgment of the court below 2 and 3.

Reasons

1. The court below's decision to dismiss a public prosecution pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act on the grounds that the victim had withdrawn his wish to punish the defendant after instituting the instant public prosecution regarding the assault in the judgment of the court of first instance, and sentenced him to the remainder of the charges except this. The defendant only filed an appeal on the grounds that the sentencing was unfair, and the dismissal part of the public prosecution was separated and finalized as it is.

Therefore, the scope of this Court's adjudication is limited to the guilty part of the judgment of the first instance and the judgment of the second and third court.

2. The defendant asserts that the summary of the grounds for appeal is unfair because of the punishment sentenced by the first instance judgment (10 months of imprisonment and 80 hours of completion of sexual assault treatment programs), the punishment sentenced by the second instance judgment (2 million won of punishment) and the punishment sentenced by the third instance judgment (300,000 won of punishment), which was sentenced by the third instance judgment (300,000 won of punishment).

3. Ex officio determination

A. In the first instance judgment and the second instance judgment on the establishment of concurrent crimes under the former part of Article 37 of the Criminal Act, the cases of appeal against the first instance judgment and the second instance judgment were combined. Each of the crimes in the first and second instance judgment is in a concurrent crime relationship under the former part of Article 37 of the Criminal Act, and as such, the crimes in the first and second instance judgment are sentenced to a single sentence within the scope of the term of punishment subject to aggravated concurrent crimes under Article 38(1) of the Criminal Act, and thus, the judgment of the court below cannot escape from reversal.

However, according to the records, the defendant was sentenced to ten months of imprisonment with prison labor on October 29, 2014 by the Changwon District Court, and the above judgment became final and conclusive on November 6, 2014. As to the crime of injury and the above injury of which judgment became final and conclusive on November 6, 2014, since the crime of concurrent crimes and the above injury of which judgment became final and conclusive after Article 37 of the Criminal Act are in the relation of concurrent crimes after Article 39(1) of the Criminal Act, the defendant must be sentenced to punishment for the crime of the third instance judgment in consideration of equity with the case where judgment is concurrently rendered pursuant to Article 39(1) of the Criminal Act. Thus, the crime of the third instance judgment before such judgment becomes final and conclusive.

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