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(영문) 서울남부지방법원 2017.10.19 2017노1348
사기등
Text

The judgment of the court below (excluding the part of an application for compensation order) shall be reversed.

A defendant shall be punished by imprisonment for one year.

except that this judgment.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding the legal doctrine, the victim BL is the spouse of the defendant, the victim BM is the child of the defendant, and the victim AV is the wife of the defendant.

Therefore, each fraud against BL and BM should be exempted from punishment in accordance with Articles 354 and 328(1) of the Criminal Act, and the fraud against AV should be dismissed in accordance with Articles 354 and 328(2) of the Criminal Act.

In the lower judgment, the lower court erred by misapprehending the legal doctrine on blood funeral.

2) The punishment sentenced by the lower court (one year of imprisonment) is too unreasonable.

B. The sentence imposed by the prosecutor by the court below is too uneasible and unreasonable.

2. According to the provisions of Articles 354 and 328 of the Criminal Act that determine the assertion of misunderstanding of legal principles, a crime of fraud between lineal blood relatives, spouse, relatives living together, family members living together, or their spouse shall be exempted, and a public prosecution may be instituted only when there is a complaint among other relatives.

According to the records, the victim BL and BM are the spouse and children of each defendant, and the victim AV is the wife of the defendant, and there is no evidence to acknowledge that AV filed a complaint against the defendant.

Therefore, each part of the Defendant’s BL and BM’s fraud (No. 13, 55, 149, 315, 332, 407, 434, 459, 50, 512, 533, 603, 603, 631, 664, 665, 742, 743, 854) against the Defendant’s BL and BM should be exempted pursuant to Articles 354 and 328(1) of the Criminal Act. Since the fraud part against AV (No. 265, 451, and 869 in the list of crimes attached to the judgment of the court below as indicated in the judgment of the court below) is null and void due to a violation of the provisions of law, the prosecution should be dismissed pursuant to Article 327 subparag. 2 of the Criminal Procedure Act. 2 of the Act.

Nevertheless, the judgment of the court below which did not render a judgment of exemption from punishment or dismissal of the prosecution as to each of the facts charged is erroneous in matters of law by misunderstanding the facts concerning the precedent among relatives, or by misunderstanding the legal principles

In doing so, each of the above parts remains.

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