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(영문) 서울남부지방법원 2021.02.02 2019노773
사기등
Text

Of the original judgment, the part of the original judgment dismissing an application for a compensation order and an order for compensation, and the third part of the original judgment.

Reasons

Summary of Reasons for appeal (unfair sentencing)

A. Defendant: As to the lower judgment of the first instance (one year and six months), the lower judgment of the second instance (eight months), and the lower judgment of the third party (three years and six months)

B. Prosecutor: As to the judgment of the first instance court

2. The first instance court's judgment partially accepted the applicant B's application for compensation, dismissed the remainder, and the third instance court's judgment dismissed all the remainder of the applicant's application for compensation.

Defendant and the prosecutor did not assert any grounds for appeal regarding the part of the judgment of the court of first instance regarding the compensation order, and even if ex officio examination is conducted, the grounds for revocation or alteration cannot be found. Thus, the cited part of the judgment of the court of first instance concerning the compensation order shall remain intact

Meanwhile, since the applicant for compensation cannot file an objection against the judgment dismissing the application for compensation order (Article 32(4) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings), where the part of the judgment below dismissing the application for compensation by the applicant for compensation among the judgment below 1, 3, it becomes final and conclusive immediately since it is impossible to file an objection, the above part is excluded from the scope of the judgment of this court.

3. As to the judgment of the court below in the first instance, the Defendant, ex officio, appealed against the judgment of the court of first instance, and this court decided to hold a joint hearing of the aforementioned appealed.

However, since each of the offenses committed against the Defendant guilty in the lower judgment is concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence should be imposed pursuant to Article 38(1) of the Criminal Act. As such, the part of the lower judgment, excluding the rejection of an application for compensation order and compensation order, and the rejection of an application for compensation order, among the lower judgment, cannot be maintained.

4. As to the conclusion of the judgment of the court of first instance, the dismissal of the application for compensation order and compensation order, and the dismissal of the application for compensation order in the judgment of the court of third instance, there are grounds for reversal ex officio.

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