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The judgment below
All convictions shall be reversed.
As to the crime No. 1 of the judgment of the court below, the defendant shall be punished by imprisonment for April and the court below.
Reasons
1. Summary of grounds for appeal;
A. Each punishment sentenced by the court below (one year of imprisonment with prison labor for the crime No. 2 of the judgment below for the crime No. 1 of the judgment) is too unreasonable.
B. Comprehensively taking account of the evidence submitted by the prosecutor, the court below found the Defendant guilty of each of the facts charged in the instant case, but found the Defendant not guilty of this part of the facts charged, which affected the conclusion of the judgment.
2. Determination:
A. We examine ex officio the grounds for appeal by the Defendant and the prosecutor prior to determining ex officio.
The lower court applied Article 2(1)1 of the Punishment of Violences, etc. Act and Article 260(1) of the Criminal Act to the criminal facts under Article 2(2) of the judgment below.
In this regard, Article 2(1)1 of the former Punishment of Violences, etc. Act, which provides that a person who habitually commits a crime of violence is punished by imprisonment with prison labor for more than one year, as the Act was promulgated and enforced by Act No. 13718, Jan. 6, 2016, was deleted. This appears to be the amendment of the Act based on reflective consideration that the previous sentencing was too serious. As such, the Act on the Punishment of Violences, etc. cannot be applied to the above facts charged, and the latter crime of habitual assault under Articles 264 and 260(1) of the Minor Criminal Act (the crime of habitual assault is included in this part of the facts charged, and the extent that it can be recognized without any amendment to the Act) shall be applied.
Therefore, the judgment of the court below on habitual assault was impossible to be maintained, and the facts charged and the facts charged in this part of the judgment of the court below on forced indecent act among the facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and one sentence should be imposed. Thus, the part on the crimes No. 2 and 3 of the judgment of the court below on the guilty portion
B. The prosecutor’s assertion in the first instance judgment and the first instance judgment as to the prosecutor’s assertion.