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(영문) 서울고등법원 2013.11.14 2013노868
현주건조물방화등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Reasons

1. The summary of the grounds for appeal (two years of imprisonment, three years of suspended execution, three years of probation) imposed by the court below on the defendant is too unhued and unreasonable.

2. Prior to the judgment on the grounds for appeal ex officio, the prosecutor, in the trial room, applied for amendments to the amendment of the indictment with respect to the name of the crime as "general building fire prevention" "general structure" "general structure" "Article 164 (1) of the Criminal Act" "Article 166 (1) of the Criminal Act" "Article 166 (1) of the Criminal Act" from among the applicable provisions of the crime of fire prevention. Since the subject of the judgment is changed by the court's permission, the judgment of the court below is no longer maintained.

3. As seen above, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the grounds for appeal on the grounds of ex officio destruction due to changes in indictment at the trial room, and the following is again decided after pleading.

【Reasons for the judgment of the court which has been used in multiple times] Criminal facts and summary of evidence recognized by the court, shall be cited as it is in accordance with Article 369 of the Criminal Procedure Act, except for the alteration of the "1. Construction Fire Prevention of the Present Building" to "1. General Building Fire Prevention", and "At the present main building" to "general buildings" as stated in the judgment of the court below, since it is identical to the stated in each corresponding column of the court below

Application of Statutes

1. Relevant Article of the Criminal Act, Article 166 (1) of the Criminal Act (the occupation of general buildings and fire prevention), Articles 3 (1) and 2 (1) 1 of the Punishment of Violences, etc. Act, and Article 260 (1) of the Criminal Act concerning the crime (the occupation of violence against carrying dangerous articles);

1. Aggravation of concurrent crimes: former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed for the crime of causing serious general buildings and fire, which is heavier than punishment);

1. The defendant's reason for sentencing under Articles 53 and 55 (1) 3 of the Criminal Code for discretionary mitigation (the following circumstances considered as favorable among the reasons for sentencing) is stated.

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