Defendant

Both parties

Park Jong-jin, Kim Jong-jin, astronomical Red ( Indictment), Kim Jong-Un (Trial)

Attorney Yang Dong-dong (Korean)

Daejeon District Court Decision 2016 Highest 3191, 2017 Highest 183 (Joint), 2017 Highest 387 (Joint), 2017 Highest 387 (Joint), 2017 Highest 1152 (Joint) Decided May 12, 2017

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Of the facts charged in the instant case, the prosecution against the fraud in the instant case No. 2017 Godan387 is dismissed.

1. Summary of grounds for appeal;

A. Defendant

The punishment of the lower court (eight months of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Ex officio determination

Before determining the grounds for appeal by the Defendant and the prosecutor, the procedure of instituting prosecution as to the fraud of the case No. 2017 Go-so387 among the facts charged in the instant case is legitimate.

A. Summary of this part of the facts charged

Around 23:00 on January 1, 2017, the Defendant sent the same attitude to pay the food cost to the Nonindicted Party, an employee, at the restaurant located in Daejeon ( Address omitted), and ordered a single-main and a single-pathn disease. However, the Defendant did not have any money in fact, and thus did not have any intent or ability to pay the price even if he was supplied with food from the Nonindicted Party. The Defendant was provided from the Nonindicted Party, namely, i.e., e., one math and a single-pathn disease equivalent to KRW 22,00 at the market price. Accordingly, the Defendant received property by deceiving the Nonindicted Party.

B. Relevant legal principles

According to the Punishment of Minor Offenses Act, anyone who has received a notification disposition from the chief of a police station shall pay the penalty within 10 days from the date of receiving the notification disposition, and anyone who has failed to pay the penalty within the said payment period shall pay the penalty plus 20/100 of the said amount within 20 days from the date following the date of the said payment period (Article 8 (1) and (2) of the Act); the chief of a police station shall, without delay, file a request for summary judgment against the person who has not paid the penalty within the payment period (Article 9 (1) 2 of the Act); and even if a request for summary judgment is made, the chief of a police station shall revoke the request for summary judgment (Article 9 (2) of the Act). The payment of the penalty so notified constitutes a case where anyone who has received notification disposition by the chief of a police station without any further penalty (Articles 8 (3) and 9 (3) of the Act); the system of light judgment provides 20/100 of the penalty for treatment of the penalty without filing of notification disposition by the chief of the Supreme Court.

C. Determination

According to the evidence submitted by the prosecutor, ① the Defendant settled food with another person’s credit card acquired, and was arrested as an offender at the scene by the police on January 1, 2017 upon receipt of the above report. On January 2, 2017, the Daejeon District Police Officer: (a) paid a penalty of KRW 50,00,00,00, which is the first due date for payment; and (b) received a penalty notice to pay a penalty of KRW 60,00,00,000, including the second due date for payment by February 1, 2017, which is the second due date for payment; (c) the Defendant did not prosecute the Defendant on the charge of fraud, which is the first due date for payment; and (d) the lower court found the Defendant guilty on the ground that there was no violation of the Punishment of Public Prosecution Act, which is the first due date for payment; and (e) the Defendant did not prosecute the charges of fraud under Article 3(1)3,017.

3. Conclusion

Therefore, the judgment of the court below is reversed in its entirety by treating the crime of fraud, which is dismissed as above, and the remaining crimes as concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant and prosecutor's assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows after pleading.

The summary of the facts constituting an offense recognized by this court and the evidence related thereto are as follows: (a) Article 369 of the Criminal Procedure Act applies to the facts constituting an offense as indicated in the judgment of the court below, with the exception of deletion of the "written statement prepared by the non-indicted 1." and the part of "written statement prepared by the non-indicted 1." in the summary of the evidence as indicated in the judgment of the court below, and therefore, it is cited as it is in accordance with Article 369

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 330 of the Criminal Act, Article 88 (1) 2 of the Military Service Act, Article 347 (1) of the Criminal Act, Article 360 (1) of the Criminal Act, Article 360 (1) of the Criminal Act, Article 329 of the Criminal Act (a thiefsing at Night Building), Article 329 of the Criminal Act (a thiefs and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

Each of the crimes of this case is disadvantageous in light of the details of the crime and the applicable law, the fact that the defendant did not agree with the victims, and that the defendant has a majority of the criminal records of the same kind.

However, in light of the fact that the defendant recognized his criminal act, reflects the fact that the amount of damage is not large, and part of the damaged goods is returned to the victim by an investigative agency, the defendant's age, character and behavior, environment, motive, consequence, circumstance after the crime, etc., and the various sentencing conditions specified in the records and arguments of this case shall be comprehensively considered.

Of the facts charged in the instant case, the gist of the facts charged as to the fraud in the instant case No. 2017 Godan387 is the same as the foregoing No. 2-A. As seen in Article 2-2(c) of the Criminal Procedure Act, the prosecution is dismissed in accordance with Article 327 subparag. 2 of the Criminal Procedure Act, since the procedure for prosecution is violated by law

Judges Kim Yang-hee (Presiding Justice)