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(영문) 서울고등법원 2018.11.23 2017노3135
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for six years.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) at the first instance court, the Defendant contests the scope of the amount obtained by deception in relation to some facts charged, and stated the grounds for appeal against the first instance court on the grounds of mistake of facts and illegality in sentencing. However, according to the statement of the Defendant and his defense counsel in the first instance trial protocol against the first instance court, the Defendant stated that he both withdraws his argument of mistake as to facts against the judgment of the first instance court and asserts only unfair sentencing grounds for appeal. On the third instance trial date of the first instance court of the first instance, the Defendant asserted that the judgment of the second instance was unfair on the grounds of appeal against the judgment of the lower court

On the other hand, there was a defense counsel’s opinion to deny some facts charged during the party’s oral argument, but the defendant and the defense counsel explicitly stated that they do not assert any misconception of facts on the grounds of appeal at the seventh trial date of the party’s trial.

The punishment sentenced by the original court (the first instance judgment: 10 years of imprisonment, and 1 year of imprisonment) is too unreasonable.

2. Examination of the reasoning for appeal by the defendant ex officio is ex officio before determining the grounds for appeal by the defendant.

The judgment of the court below in the first and second instances was rendered to the defendant, and the defendant appealed, and each appeal case against the judgment of the court below in the first and second instances was consolidated in the court of appeal.

Article 38(1) of the Criminal Act provides that each crime of the first and second judgment shall be sentenced in accordance with Article 38(1) of the Criminal Act in relation to concurrent crimes under the former part of Article 37 of the Criminal Act.

In this respect, the judgment of the court below Nos. 1 and 2 was no longer maintained.

3. The judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's unfair argument of sentencing, and the judgment below is reversed in its entirety and it is again decided as follows.

[Grounds for the new judgment] Criminal facts and summary of evidence recognized by the court is the first instance judgment.

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