Defendant

Defendant

Park Ho-hoon

Gwangju District Court Decision 2006Kadan13 decided Feb. 16, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

The fifty-one day of detention before the judgment of the court below is pronounced shall be included in the above sentence.

Of the facts charged in the instant case, punishment for fraud by using computers, etc. shall be exempted.

1. Summary of grounds for appeal;

The gist of the defendant's appeal is that the punishment sentenced by the court below to the defendant is too unreasonable.

2. Determination

Before determining the Defendant’s assertion of unreasonable sentencing, the Defendant’s use of the computer, etc. on the victim Nonindicted Party as stated in paragraph (3) of the crime in the judgment of the court below constitutes a criminal under Article 347-2 of the Criminal Act. According to the records, the record recognizes the fact that the victim Nonindicted Party was a child of the Defendant (see Articles 2-42 and 354 of the Investigation Record). As to this part, the Defendant should be exempted from the punishment pursuant to Articles 354 and 328(1) of the Criminal Act.

Nevertheless, the court below decided to punish fraud using computers, etc. as a concurrent crime under the former part of Article 37 of the Criminal Act with the crime of Articles 1 and 2 of the Criminal Act, which is the first and the second of the judgment, and the judgment of the court below was no longer maintained in this regard since it affected the judgment by misunderstanding the legal principles on fraud among relatives.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The gist of the facts charged and the evidence admitted by this court is as follows: (a) except for deletion of “1. Investigation Report (the victim’s number specified in the stolen passbook number)” in the summary of the evidence of the court below, since it is identical to the facts charged in the judgment of the court below and the summary of the evidence; and (b) thus, it is cited in accordance with Article

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

Each fraud: Article 347(1) of the Criminal Code

Each private document reference organization: Article 231 of the Criminal Code

Articles 234 and 231 of the Criminal Code

Each Imprisonment Selection

1. Aggravation for repeated crimes;

Article 35 of the Criminal Code

1. Aggravation of concurrent crimes;

Article 37 (Limits under proviso of Article 42 of the Criminal Act), Article 38 (1) 2, and Article 50 of the Criminal Act)

1. Calculation of days of detention;

Article 57 of the Criminal Act

It should be criticized that the Defendant committed the instant crime of the same kind during the period of repeated crime; however, the Defendant exempted from punishment for fraud by using computers, etc. in its holding, reflects his/her criminal act, and other punishment shall be mitigated than the original judgment in consideration of the age, health condition, etc. of the Defendant.

Of the facts charged in the instant case, the facts charged by using computers, etc. are as stated in Paragraph (3) of the facts constituting the crime of the lower judgment. This constitutes a case where the punishment should be exempted pursuant to Articles 354 and 328(1) of the Criminal Act as stated in the reasons for reversal, and thus, the punishment on this part is exempted.

It is so decided as per Disposition for the above reasons.

Judges Park Byung-hee (Presiding Judge)