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(영문) 인천지방법원 2017.03.22 2016노5149
사기방조등
Text

We reverse the judgment of the court below.

A defendant shall be punished by imprisonment for a term of one year and four months.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) is too unreasonable that the sentence (one year: imprisonment with prison labor for the first instance court; six months: imprisonment with prison labor for the second instance court) imposed on the accused by the original court is too unreasonable.

2. Ex officio determination

A. This court held a joint hearing of each appeal case against the judgment of the court below, and each of the offenses against the defendant at the time of the judgment of the court below against the defendant is concurrent offenses under the former part of Article 37 of the Criminal Act, and should be punished as a single sentence within the scope of punishment aggravated for concurrent offenses in accordance with Article 38(1) of the Criminal Act. Therefore, the judgment of the court below cannot be maintained as it is.

B. In addition, while Article 347-2 of the Criminal Act applies to the criminal facts (the crime of aiding and abetting fraud by using computers, etc.) in the judgment of the Defendant, the lower court cannot be maintained as it is because it erred by applying Article 347(1) of the Criminal Act.

(c)

Article 32 (2) of the Criminal Code provides that "the punishment of accessories shall be mitigated to less than that of the principal offender.

Although the judgment of the court below stipulated that "the punishment for aiding and abetting fraud and aiding and abetting the use of computers, etc. in the judgment of the court below is erroneous by omitting the statutory mitigation under the above provision.

In this regard, the judgment of the court below can no longer be maintained.

3. If so, 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, since there is a ground for reversal under the above authority, and it is again decided as follows.

[Judgment] The summary of the facts constituting the crime and the evidence admitted by the court and the summary of the evidence are ① the facts constituting the crime and the summary of the evidence as stated in the judgment of the court below, ① the phrase “ October 2, 2016” in the sentence No. 16 of the judgment of the court below No. 2 is corrected as follows: (i) October 2, 2015; and (ii) ex officio, to the extent that it is not likely to cause any substantial disadvantage to the defendant’s exercise of his/her right to defense, the victim of the crime No. 3 of the judgment of the court below No. 18.

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