(1) Whether the court has conducted a hearing without any trace of the proceedings

The court below found the Defendants guilty of the facts constituting the crime in its ruling without examining it in the court, which is unlawful since it did not provide the Defendants with an opportunity to make a statement of facts beneficial to the facts constituting the crime.

Article 267 of the Criminal Procedure Act, Article 286 of the Criminal Procedure Act

November 27, 1973, 73Do2537 (Supreme Court Decision 10627, Supreme Court Decision 286(2) 1435, Court Gazette 479, 7640 pages 7640)

Defendant 1 and one other

Defendants

Busan District Court (81 High Court Decision 363)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for a maximum term of three years, by a short term of two years and six months, and by imprisonment for a term of two years and six months.

Out of detention days prior to the pronouncement of the judgment of the court below, 90 days shall be included in the defendant 1, 85 days for the defendant 2, and the above sentence against the defendants.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

The excessive one (No. 1) seized shall be confiscated by the Defendants, and the seized driver's license (No. 2) and one (No. 3) shall be returned to the victims.

The summary of the grounds for appeal by the Defendants and the defense counsel is as follows: first, even though the Defendants did not commit a crime at the time of the original trial, the lower court erred and adversely affected the judgment; second, the lower court's punishment against the Defendants is too unreasonable.

In light of the records, if the evidence duly adopted and examined by the court below is examined in comparison with the records, it can be found that the facts charged at the time of original trial are sufficiently recognized, and no other evidence exists to deem that the court below erred in its fact-finding, and the defendants' defense counsel's assertion of mistake is groundless

However, prior to the determination of the assertion of unfair sentencing by the Defendants and their defense counsel, according to the examination of the case and the case records, the court below clearly admitted the Defendants guilty without examining the facts constituting the crime in its decision in the court.

Thus, it is illegal because the defendants did not have an opportunity to make statements about facts beneficial to them. Therefore, the judgment of the court below is not reversed.

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the judgment is again ruled as follows after pleading.

The facts constituting a crime acknowledged as a member of the political party are the same as that of the court below, and the evidence relationship is that of the court below, and the appearance of each statement consistent with the defendants' decision in the trial court is the same as that of the court below, and therefore, it is cited as it is.

The defendants' judgment constitutes Articles 34(2) and (1) and 33 of the Criminal Act. Since the defendants' judgment below falls under Article 334(2) of the Criminal Act and Article 333 of the Criminal Act, the prescribed imprisonment term is chosen, defendant 2 is the first offender, and defendant 1 is the first offender and there are reasonable grounds for taking into account the above circumstances, such as the depth of the crime, it shall be punished within the scope of discretionary punishment under Articles 53 and 55(1)3 of the Criminal Act. Since defendant 1 is the juveniles under Article 2 of the Juvenile Act, Article 54 of the same Act is the juveniles under Article 54 of the same Act, the defendant 1 shall be punished within the maximum of 3 years and 2 years and 6 months, and the defendant 2 shall be sentenced to the defendant 1 among the detention days prior to the declaration of the judgment below pursuant to Article 57 of the Criminal Act, the defendant 2 shall be included in the above punishment for 90 days, the defendant 2 shall be included in the above punishment against the defendants, and the victim 1).

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

Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)