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(영문) 서울고등법원 2021.02.03 2020노1471
특정경제범죄가중처벌등에관한법률위반(배임)등
Text

The part of the judgment of the court of first instance excluding compensation order and the judgment of the court of first instance 2 and 3 shall be reversed.

Defendant shall be punished by imprisonment.

Reasons

1. Where an appeal is filed against a conviction of the scope of adjudication in this Court, the confirmation of a compensation order shall be prevented even without an objection to the compensation order, and the compensation order shall be transferred to the appellate court (Article 33(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings). Article 1 of the lower court’s judgment, which accepted an application for compensation by an applicant CN, shall be deemed to have been appealed pursuant to Article 33(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, but the part accepting the compensation order shall be deemed to have been appealed pursuant to Article 33(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. However, even if the Defendant and his defense counsel submitted a petition of appeal and the reason for appeal are examined ex officio, the part admitting the compensation order

2. Summary of grounds for appeal;

A. The Defendant (unfair sentencing)’s each sentence (the first sentence: imprisonment with prison labor for two years, the second sentence: imprisonment for one year and six months, the additional collection for 80 million won, and the third sentence: imprisonment for two years and two years and fines for 10 million won, and the additional collection for 5 million won) imposed by the lower court is too unreasonable.

B. The lower court’s sentence No. 3 of the Prosecutor (unfair sentencing) is too unhued and unreasonable.

3. The judgment of the court below was sentenced to the first, second, and third court. The defendant appealed against the first, second, and third court's judgment, and the prosecutor appealed against the third court's judgment, and this court decided to hold a joint hearing of the above three appeals. The court below's each offense against the defendant is related to concurrent crimes under the former part of Article 37 of the Criminal Act, and one punishment should be sentenced pursuant to Article 38 (1) of the Criminal Act. Thus, the part of the judgment of the court of first instance except the compensation order and the part of the judgment of the court of first instance and the second, and the third court's judgment cannot be maintained any more.

4. Accordingly, the part of the judgment of the court below excluding the compensation order among the judgment of the court below 1 and the judgment of the court below 2 and 3 are reversed ex officio. Thus, the judgment of the court below as to the defendant and the prosecutor'

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