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(영문) 광주지방법원 2016.02.03 2015노2033
특정범죄가중처벌등에관한법률위반(운전자폭행등)등
Text

All judgment of the court below shall be reversed.

The punishment of the accused shall be determined by six months of imprisonment.

(2).

Reasons

1. Summary of grounds for appeal;

A. As Defendant (1) misunderstanding the legal doctrine, Defendant C’s written agreement was submitted to the lower court on May 28, 2015, the part of the crime of assault in the judgment of the first instance court was dismissed pursuant to Article 327 subparag. 6 of the Criminal Procedure Act, but the lower court erred by misapprehending the legal doctrine on this part.

(2) The sentence of the first decision on the sentencing unfair (two years of suspension of execution for four months of imprisonment, one year of protection observation, and 120 hours of community service order) is too unreasonable.

(b) The sentence of the decision on the second judgment of the Prosecutor (two years of suspended sentence for four months of imprisonment, and observation of protection) is too uneased and unreasonable.

2. Determination

A. Prior to the judgment on the grounds for ex officio appeal, this Court tried at ex officio prior to the judgment on the grounds for appeal, and this Court tried by combining each appeal case against the judgment below. Each of the offenses committed by the judgment below is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and a sentence should be imposed pursuant to Article 38(1) of the Criminal Act. In this regard, the judgment of the court below cannot be exempted from all reversal.

The defendant's assertion of misunderstanding of the above legal principles is still subject to the judgment of this court, despite the above reasons for reversal of authority.

B. As to the facts of the crime No. 1 in the judgment of the court below as to the allegation of misunderstanding of the legal principles as to the judgment of the court of first instance, the crime of assault is a crime falling under Article 260 (1) of the Criminal Act, which cannot be prosecuted against the victim's express intent under Article 260 (3) of the Criminal Act. According to the written agreement (the page No. 11 of the trial record) prepared by the victim bound in the trial record, the victim can be acknowledged as having withdrawn his/her wish to punish the defendant on May 28, 2015, which is the day before the judgment of the court below is rendered. Thus, the prosecution against this part of the facts of the crime should be dismissed pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act.

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