(영문) 수원지방법원 2017.12.20 2017노8023 | 리걸엔진

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Reasons

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자간(%)

(영문) 수원지방법원 2017.12.20 2017노8023

공무집행방해등

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All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the lower court (one year and six months of imprisonment) is too unreasonable.

B. In light of the following: (a) the prosecutor (1) misleads the Defendant of the facts (as to the part not guilty), the Defendant committed the larceny three times on or around June 2016 and on or around August 2017 under the same law; (b) all the crimes were committed within a short period; and (c) the Defendant committed the instant crimes within six months after the execution of punishment by the larceny; and (d) the Defendant committed the instant crimes within six months after the execution of punishment by the larceny, etc., the instant crimes were deemed to have been realized of the Defendant’s larceny, but under different premise, the lower court erred by misapprehending the fact that the Defendant did not recognize the habitualness of the Defendant’s larceny.

(2) The sentence of the lower court’s improper sentencing is too uneasible.

2. Determination

A. In the determination of the prosecutor’s assertion of mistake of the facts, habitual nature refers to the habition that repeatedly commits the larceny. The existence of the same criminal record and the frequency, period, motive, means, and method of the instant crime should be comprehensively considered (see Supreme Court Decision 2008Do11550, Feb. 12, 2009, etc.). On June 2016, the Defendant: (a) was sentenced to eight months as indicated in the facts of the lower judgment, and was released on February 20, 2017, prevented the Defendant from committing a larceny on four occasions on the same occasions as indicated in paragraph (2) of the lower judgment, as indicated in the lower judgment.

However, it is difficult to conclude that each of the larceny crimes of this case was based on the Defendant’s thief, and there is no other evidence to acknowledge it. Thus, the prosecutor’s assertion of the facts by mistake is without merit.

B. Regarding the argument that the sentencing of the defendant and the prosecutor is unfair.

참조판례

-대법원 2009. 2. 12. 선고 2008도11550 판결

유사 판례

-수원지방법원 2016.06.22 2015노6960

-서울고등법원 2017.04.20 2017노115

-서울중앙지방법원 2013.11.29 2013노3531

-대구고등법원 2018.06.28 2018노155

-대구고등법원 2016.09.22 2016노387