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서울서부지방법원 2013.09.26 2013노818
무고등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Reasons

Summary of Grounds for Appeal

The Defendant, on February 19, 2009, received money from N to KRW 50,00,00 from N for investment, and did not enter into a sales contract for the volume of 579 square meters before N and Jeju K (hereinafter “instant land”) or receive the said money as a purchase price, but the lower court found the Defendant guilty of this part of the facts charged, contrary to this, erred by misapprehending the fact that the lower court affected the conclusion of the judgment.

The imprisonment (one year of imprisonment) imposed by the court below on the defendant is too unreasonable.

Judgment

The punishment shall be mitigated or exempted pursuant to Articles 157 and 153 of the Criminal Act, in a case where a person who committed an offense without judgment prior to the judgment on the grounds for appeal by the defendant ex officio prior to the judgment on the reported case or the disciplinary action becomes final and conclusive. According to the records of this case, G which was accused by the defendant was not prosecuted, and the defendant was present on the second trial date of the court below and led to the confession of the offense of this case. Thus, the punishment shall be mitigated or exempted as necessary pursuant to Articles 157 and 153 of the Criminal Act because it falls under the case where the defendant was led to confession before the judgment on the reported case becomes final and conclusive. However, the court below erred by omitting the necessary reduction or exemption measures against the defendant, and thus the judgment of the court below is no longer maintained.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, despite the above reasons for ex officio reversal.

On the other hand, the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, i.e., victim N from the defendant around February 18, 2009, relatively consistent to the investigation agency and the court.