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(영문) 서울고등법원 2017.08.24 2017노1362

The judgment of the court below is reversed.

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


The summary of the grounds for appeal: The sentencing (six years of imprisonment) of the court below against the defendant who is unfair in sentencing is too unreasonable.

Prosecutor: The sentencing of the court below for the defendant is too uncomfortable.


Based on the statutory penalty, the sentencing is a discretionary judgment that takes into account the conditions of the sentencing prescribed in Article 51 of the Criminal Act within a reasonable and appropriate scope.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

Unless there exist such exceptional circumstances, it is desirable to respect the sentencing of the first instance trial (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). In light of the foregoing legal doctrine, in the first instance trial, the Defendant sought a letter from the victims and made compensation in part of the victims in the form of money, and expressed his/her intention not to punish the victims or wanted to have his/her wife. The Defendant’s wife expressed his/her intention to support the Defendant so that the Defendant would live a correct life, and the Defendant’s family members also want to do so, and the Defendant appears to be more closely against the Defendant.