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(영문) 대법원 2017.09.07 2017도8103
특수절도등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. According to the records on the grounds of Defendant A’s appeal, Defendant A appealed against the judgment of the first instance, and only asserted the unfair sentencing on the grounds of appeal.

In such a case, the argument that the lower court erred by misapprehending the legal doctrine cannot be a legitimate ground for appeal.

In addition, the argument that the judgment below erred in the method of sentencing review and sentencing determination by infringing on the essential contents of the principle of balance of crime or the principle of responsibility is ultimately an unfair argument in sentencing.

Therefore, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the grounds of unfair sentencing. As such, the argument that the determination of punishment is unfair in this case where Defendant A was sentenced to minor punishment is not a legitimate ground for appeal.

2. As to the grounds for appeal by Defendant B, the argument that the lower court erred in its determination of sentencing and sentencing by infringing on the essential elements of the principle of balance of punishment or the principle of responsibility constitutes an unfair argument of sentencing.

Therefore, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the grounds of unfair sentencing. As such, in this case where Defendant B was sentenced to minor punishment, the argument that the determination of punishment is unfair is not a legitimate ground for appeal.

3. Examining the reasoning of the lower judgment on the grounds of Defendant D’s appeal in light of the evidence duly admitted, the lower court’s judgment that found Defendant D guilty of special larceny among the facts charged against Defendant D, on the grounds indicated in its reasoning is justifiable.

In contrast to the allegations in the grounds of appeal, it is erroneous for the court to recognize facts in violation of the rules of evidence or the legal principles as to the principal offender.

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