The judgment of the court below is reversed.

The defendant shall be punished by imprisonment with prison labor for the first fraud of the judgment of the court below in 1 year and 10 months.

Summary of Grounds for Appeal

The punishment (crimes No. 1 of the judgment of the court below: Imprisonment with prison labor for one year and ten months, and 2 of the judgment of the court below: Imprisonment with prison labor for six months) declared by the court below is too unreasonable.

The facts of the Defendant’s criminal records, which are the grounds for aggravation of repeated crimes, do not constitute criminal facts, but merely constitute grounds for sentencing, and even if not stated in the indictment, deliberation and judgment can be conducted, and even if the indictment does not contain any applicable provisions for aggravation of repeated crimes, the court, ex officio, may punish the Defendant as a repeated offense by applying this provision.

(See Supreme Court Decision 71Do2004 Decided December 21, 1971; Supreme Court Decision 2006Do3194 Decided July 27, 2006; Supreme Court Decision 2017Do2604 Decided April 26, 2017, etc.). Examining the foregoing legal doctrine in light of the foregoing.

According to the records of this case, on April 25, 2014, the Defendant was sentenced to two years of imprisonment for fraud, etc. at the Seoul Western District Court, and completed the execution of the sentence in the official prison on July 4, 2015.

The crime of fraud No. 1 of the holding of the court below constitutes a crime committed within three years from the date on which the execution of the above punishment was completed and committed during the period of repeated crime, but the court below's failure to punish it as a repeated crime

The judgment on the assertion of unfair sentencing (part 2 of the judgment of the court below) is that the defendant has been punished several times for the same kind of crime, that the defendant committed this part of the crime during the repeated crime period, that most of the crimes were denied to the court below, and that the defendant did not repent of the crime, and that the damage recovery was not made at all is disadvantageous to the defendant

However, in light of all the sentencing conditions indicated in the argument of this case, including the Defendant’s age, character and conduct, and environment, when the Defendant was in the trial of the trial of the trial, the punishment sentenced to the second fraud as stated in the judgment of the court below is somewhat unreasonable.