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(영문) 서울남부지방법원 2019.02.19 2018노1456
사기등
Text

The prosecutor's appeal is dismissed.

Reasons

1. In light of the fact that the crime of this case was committed during the period of repeated crimes for the same kind of crime, the nature of the crime is inferior in light of the background and method of the crime, and the amount of damage was very serious and the amount of damage was not recovered from damage, etc., the sentence of the court below (two years and six months of imprisonment) is too low and unfair.

2. Determination of sentencing is based on statutory penalty, discretionary determination that takes place within a reasonable and appropriate scope, taking into account the factors constituting conditions for sentencing prescribed in Article 51 of the Criminal Act.

However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the judgment of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing in the course of the first instance sentencing review and the sentencing criteria, etc., or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing review.

In the absence of such exceptional circumstances, it is desirable to respect the sentencing of the first instance court in the absence of such exceptional circumstances.

(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015 (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). The lower court, on the grounds stated in its reasoning of sentencing, determined the above sentence to the Defendant on the following grounds: (a) in light of the following: (b) the Defendant’s age, character and conduct, family relationship, motive and circumstance of the crime; and (c) all factors of sentencing as indicated in the instant records and arguments, including the circumstances after the crime, cannot be deemed unfair since the sentence imposed by the lower court is too uneasible.

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