The judgment below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the above punishment shall be imposed for two years from the date this judgment becomes final and conclusive.

Summary of Grounds for Appeal

The punishment of the lower court (eight months of imprisonment) is too unreasonable.

The crime of violation of the Road Traffic Act among the crimes in this case of ex officio determination is a crime falling under Article 148-2 (2) 1 and Article 44 (1) of the Road Traffic Act, and the statutory penalty is stipulated as imprisonment for not less than one year but not more than three years, or a fine not less than 5 million won but not more than 10 million won. The court below selected imprisonment and sentenced imprisonment for not more than eight months.

However, inasmuch as the lower limit of the punishment for the instant crime is one year, the lower court should have sentenced the Defendant, who did not have any legal reason for mitigation, to the above sentence, and sentenced the sentence beyond the scope of the punishment without omitting it, and thus, the lower court could no longer maintain the lower judgment in this respect.

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the ground that the above ground for reversal exists, and the judgment below is again decided as follows.

Criminal facts

The summary of the facts charged and the summary of the evidence recognized by the court are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant provisions of Article 148-2 (2) 1, and Article 44 (1) of the Road Traffic Act concerning the facts constituting a crime (the point of a sound driving) and subparagraph 1 of Article 152 of the Road Traffic Act and Articles 152 and 43 of the Road Traffic Act;

1. Articles 40 and 50 of the Criminal Act of the Commercial Concurrent Crimes;

1. Selection of imprisonment with prison labor chosen;

1. Mitigation of discretionary mitigation under Articles 53 and 55 (1) 3 of the Criminal Act;

1. Article 62 (1) of the Criminal Act on the stay of execution ( normal consideration in favor of the defendant);

1. The reasons for sentencing under Article 62-2(1) of the Criminal Act and Article 59 of the Act on Probation, etc. are punished three times due to drinking and unlicensed driving.