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(영문) 부산고등법원 2015.06.25 2015노258
강도치상등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than four years and six months.

A victim of seized knife (No. 1).

Reasons

1. The summary of the grounds for appeal (the confiscation of 4 years and six months of imprisonment and one knife (No. 1) imposed by the court below) is too unreasonable.

2. According to each of the statements in the Health Team, the seizure protocol (a voluntary submission), and the police statement of D (a police record 30,35 pages) ex officio determination, one knife (a knife length 13.5 cm, 11.5 cm in length) seized is recognized as having been an object owned by the victim D. Thus, the above knife is owned by a person other than the criminal and cannot be subject to confiscation pursuant to Article 48(1) of the Criminal Act.

Nevertheless, the court below sentenced forfeiture pursuant to Article 48 (1) 1 of the Criminal Act on the premise that the above knife does not belong to a person other than the defendant. Thus, the court below erred by misunderstanding the facts and thereby making it impossible to maintain it more.

3. Accordingly, the judgment of the court below is reversed pursuant to Article 364 (4) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again decided as follows after oral argument.

[New reasoning of the judgment below] The summary of facts constituting an offense and evidence recognized by this court is identical to the corresponding column of the judgment below. Thus, it is acceptable to accept it as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant legal provisions concerning criminal facts, Article 337 of the Criminal Act, Article 347 (1) of the Criminal Act, Article 347 (1) of the Criminal Act, Articles 352 and 347 (1) of the Criminal Act, Article 70 (1) 4 of the Specialized Credit Financial Business Act (the use of a debit card which is forcibly recorded in the original judgment), Article 70 (1) 3 of the Specialized Credit Financial Business Act (the selection of imprisonment), Article 70 (1) 3 of the Specialized Credit Financial Business Act (the use of a spin-off credit card, the choice of imprisonment), Article 329 of each Criminal Act (the selection of each thief), Article 329 (the selection of each thief) of the Criminal Act, the Criminal Act.

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