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(영문) 대전고등법원 2020.09.11 2020노186
특정범죄가중처벌등에관한법률위반(절도)
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. At the time of committing the instant crime, the Defendant was in a state of mental disability due to the disease of a mental divided disease and a stimulative disorder.

B. In view of the fact that the Defendant had a mental illness at the time of committing the instant crime, that there was a confession of all the crimes, that is contradictory to the Defendant while making a confession, and that she is willing to gather, fright, and live together without re-offending in the future, the sentencing of the lower court (one year and six months of imprisonment) is excessively unreasonable.

2. Determination

A. According to the evidence duly admitted and examined by the lower court as to the assertion of mental disorder, the fact that the Defendant was receiving medical treatment from around August 2012, 201, such as the remaining mental divided disease, the Embinson’s disease, the Embinson’s disease, the bipolartic disorder, the mixed uneasiness, and the depression disorder, cannot be deemed to have reached the state where the degree of such disease lacks the ability to discern things or make decisions.

Therefore, we cannot accept this part of the defendant's appeal.

B. As to the assertion on unfair sentencing, the sentencing on the basis of statutory penalty is a discretionary judgment that takes place within a reasonable and reasonable scope, taking into account the factors constituting the conditions for sentencing under Article 51 of the Criminal Act.

However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the judgment of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing in the course of the first instance sentencing review and the sentencing criteria, etc., or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing review.

2.2

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