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Cases
2016Do14367 thief and intrusion upon residence
Defendant
A
Appellant
Defendant
Defense Counsel
Attorney L (Korean national ship)
The judgment below
Seoul Western District Court Decision 2016No374 Decided August 25, 2016
Imposition of Judgment
June 8, 2017
Text
The judgment below is reversed, and the case is remanded to the Seoul Western District Court.
Reasons
1. Judgment on the grounds of appeal
According to Article 383 subparagraph 4 of the Criminal Procedure Act, death penalty, imprisonment with or without prison labor for life or for not less than ten years.
Inasmuch as an appeal based on unreasonable sentencing is allowed only on a case on which the decision was rendered, the appeal against the Defendant is more.
In this case where minor punishment has been imposed, the argument that the amount of punishment is unreasonable is legitimate appeal.
shall not become a reason.
2. Ex officio determination
A. According to Article 323(1) of the Criminal Procedure Act, facts constituting an offense and evidence in the grounds for the judgment of conviction
The summary of the judgment and the application of the law shall be specified, and the reasons for the judgment of conviction shall be specified
Where any one of them is omitted, it shall affect the judgment prescribed in Article 383 subparagraph 1 of the Criminal Procedure Act.
8. As a matter of course, the lower court did not err by misapprehending the legal doctrine on the grounds of reversal (Supreme Court Decision 2010Do9151 Decided October 14, 2010).
see, e.g., Supreme Court Decision
B. According to the reasoning of the lower judgment, the lower court accepted the Defendant’s appeal of unfair sentencing.
The judgment of the court of first instance is reversed, and the defendant is convicted, and the judgment is without merit.
the first instance judgment which only cited the criminal facts and summary of evidence and omitted the application of the law in its entirety.
The room can be known, which is erroneous in violation of the law.
3. Conclusion
The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.
We conclude that it is so decided as per Disposition by the assent of all participating Justices.
Judges
The presiding judge shall keep the record of the Justice
Chief Justice Park Jong-young
Justices Kim Jae-in