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(영문) 청주지방법원 2017.10.13 2017노922
특수절도
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

Reasons

1. The sentence imposed by the lower court (six months of imprisonment) on the summary of the grounds for appeal is too unreasonable.

2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant

Special larceny in the holding of the court below is a crime falling under Article 331 (2) and (1) of the Criminal Act, and statutory punishment is one to ten years. Thus, in order to sentence a defendant to imprisonment for a period of less than one year, measures such as mitigation of punishment under Article 60 (2) of the Juvenile Act or mitigation of punishment under Articles 53 and 55 (1) 3 of the Criminal Act shall be prior to the punishment.

However, the lower court did not take such mitigation measures and sentenced the Defendant for a short-term of one year and six months without prison labor, thereby having sentenced the lower court to a punishment lower than the statutory penalty.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment.

3. In conclusion, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act, and the judgment below is reversed and it is again decided as follows.

[Re-written judgment] The criminal facts and the summary of the evidence against the defendant recognized by the court in charge of criminal facts and the summary of the evidence are as stated in the judgment below, except for changing "victim G" to "victim R" and "victim J" to "victim S," and therefore, it is identical to the corresponding column of the judgment below. Thus, it is acceptable in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article 331 (2) and (1) of the Criminal Act concerning the facts constituting an offense;

1. The former part of Article 37 of the Criminal Act, and Articles 38 (1) 2 and 50 of the same Act, which aggravated concurrent crimes;

1. Articles 53 and 55 (1) 3 of the Criminal Act to mitigate small amount;

1. Article 60(3) of the Act on the Suspension of Execution, Article 62(1) of the Criminal Act, and Article 62(1) of the Criminal Act, the defendant's mistake is pened in depth.

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