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(영문) 서울고등법원 2016.01.22 2015노2717
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

Aknife knife 1 knife knife (No. 1), Ra.

Reasons

1. Summary of grounds for appeal;

A. As to the violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.) and the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.), among the facts charged in the instant case, the Constitutional Court’s violation on September 24, 2015 by carrying with it a deadly weapon or other dangerous object under Article 3(1) of the Punishment of Violences, etc. Act, the part concerning a person who committed a crime under Articles 260(1) and 283(1) and 366 of the Criminal Act, is against the principle of equality by losing balance in the criminal system.

As Constitutional Court Decision 2501Hun-Ba154 Decided September 24, 2015 (Supreme Court Decision 2501Hun-Ba154 Decided September 24, 2015), the court may no longer be sentenced to conviction by applying the above law.

B. The sentence of the lower court (a three-year imprisonment, confiscation) is too unreasonable.

2. Prior to the judgment on the grounds of ex officio appeal, the prosecutor tried ex officio prior to the judgment on the grounds of appeal, and the prosecutor's violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) among the facts charged against the defendant, as special intimidation, and the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) (a crime such as violence) is a special assault. As such, the applicable provisions of the law were applied for the permission of modification of the indictment to each of the changes in Articles 284, 283 (1), and 261, and 260 (1) of the Criminal Act, and this part of the indictment was changed by this court's permission.

On the other hand, the remaining crimes and the modified parts of the judgment of the court below found guilty of the defendant should be sentenced to a single sentence in the concurrent crimes relationship under the former part of Article 37 of the Criminal Act. In this regard, the judgment of the court below cannot be maintained as it is

3. Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the legal principles of the defendant and the unfair argument of sentencing, and the judgment below is reversed and it is again decided as follows.

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