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All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for a term of one year and four months.
950,000 won from the defendant.
Reasons
1. Summary of grounds for appeal;
A. Defendant (Defendant 1) was sentenced to imprisonment with prison labor for a period of one year and two months due to a violation of the Act on the Control of Narcotics, Etc. (fence), and the judgment was finalized on June 9, 2020. The crime in the first instance judgment constitutes a concurrent crime under Article 39(1) of the Criminal Act and Article 37 of the Criminal Act. However, the first instance judgment, which did not apply the sentence, is erroneous in the misapprehension of legal principles. 2) The first instance judgment, which sentenced the Defendant to imprisonment with prison labor for a period of one year and six months and an additional collection of 450,000 won, is too unreasonable.
The prosecutor's (unfair sentencing on the second judgment of the court of appeal) sentenced by the second instance to the accused (the imprisonment of 4 months and the collection of 500,000 won) is too unfeasible and unfair.
2. As the judgment of the court below against the defendant for ex officio judgment, the defendant filed an appeal against the second judgment of the court of first instance, and this court decided to hold concurrent hearings. Since each of the offenses against the defendant is concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below should be sentenced to one punishment pursuant to Article 38(1) of the Criminal Act, and thus, the judgment of the court below cannot be maintained any more.
3. According to the records on the Defendant’s assertion of misapprehension of the legal principles, the Defendant, at the Incheon District Court on November 1, 2019, sentenced one year and two months to imprisonment on June 9, 2020 by violating the Act on the Control of Narcotics, etc., and confirmed on June 9, 2020. As such, the crime of each of the crime in the judgment of the first instance against the Defendant and the above crime, for which the judgment became final and conclusive, should be sentenced to punishment for the crime in the judgment of the first instance court by taking into account equity in the case of concurrent crimes under the latter part of Article 37(1) of the Criminal Act, and thus, the judgment of the first instance court that did not apply, cannot be maintained.
Therefore, it is true.