Where an evaluation of constituent elements is reduced and recognized within the scope that is identical to the facts charged, but the reasons therefor are not specified, and the reasons for ex officio adjudication under Article 364(2) of the Criminal Procedure Act

The phrase "judgment" under Article 364 (2) of the Criminal Procedure Act refers to the whole judgment composed of the order and the reasons. The purport of the above provision of the Criminal Procedure Act that allows ex officio rulings with respect to the grounds that affect the judgment, is that in order to prevent the destruction of unnecessary judgment of the court below, minor mistakes in the judgment of the court below shall be deemed not to affect the judgment. In addition, in cases where a judgment is rendered in any form or in any form pursuant to Article 39 of the same Act, the reasons should be clearly stated, and in cases where a judgment is not guilty of part of ordinary concurrent crimes or comprehensive crimes, or the judgment which reduces the constituent evaluation within the scope that is recognized as identical to the facts charged, it shall specify the reasons for the judgment among the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and where the scope of the punishment varies significantly differently by reducing the constituent evaluation of the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, but it does

Articles 364(2) and 39 of the Criminal Procedure Act

Defendant 1 and one other

Defendants

Western Branch Court of Seoul District Court of the first instance (90Gohap4)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for three years and by imprisonment for six months.

The 85-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence against Defendant 1.

However, the execution of the above punishment against Defendant 2 shall be suspended for one year from the date this judgment became final and conclusive.

The application for compensation of this case by the applicant for compensation is dismissed.

Defendant 1’s summary of the grounds for appeal Nos. 1, 1, the first instance court found Defendant 1 guilty, and the second and the summary of the Defendants’ attorney’s appeal is unreasonable because the lower court’s punishment is too unreasonable because the Defendant’s punishment imposed on the Defendants is too unreasonable, inasmuch as Non-Party 1, who had been the director of the Seoul Metropolitan Government Non-Party 1 at the time, did not decide the special debt issue of new employees in the Seoul Metropolitan Government without the mind of the president of the Seoul subway Corporation.

Therefore, Defendant 1’s assertion of mistake of facts is considered to be health, and according to the evidence duly examined and adopted by the court below, each crime of Defendant 1’s original trial can be fully acknowledged. Therefore, this argument is without merit.

Then, prior to the determination of the defendants' assertion of unfair sentencing, (1) The indictment and the judgment of the court below reveal that the prosecutor comprehensively evaluated the crimes against the defendants 1 to the whole victims of the fraudulent act and charged the defendants for violating Article 3 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter the Act on the Aggravated Punishment, etc. of Specific Crimes) on the ground that the combined amount of the profit falls under the case of not less than 100,000,000 won but less than 1,00,000 won. The court below found that the above defendants' above fraudulent act was comprehensively assessed by victims and did not attach the statement of such reason to the crime of simple fraud under the Criminal Act. Thus, according to Article 364 (2) of the Criminal Procedure Act, the court below's judgment can be judged ex officio even if it is not included in the grounds affecting the judgment, and the court below's decision that the above judgment should not be deemed to have any effect on the judgment of the court below that it should not be justified in its judgment.

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

The criminal facts of the defendants and the summary of the evidence recognized by the court below in the judgment below are as follows: "At around 16:00 on March 21, 198, the co-defendant 1 in the Seocho-gu Seoul High Bus Terminal waiting room known that he had no intention or ability to find employment as an employee of the Seoul Urban Railroad Corporation, and if the victim non-indicted 2 wants to transfer money to the defendant's deposit account under the pretext of changing employment in Gwangju, he would have the victim non-indicted 2 deposit the money to the above deposit account, upon the request of the above co-defendant 1 in order to receive money, after informing the above request of the above deposit account number of the defendant and inform him of the deposit account number of the defendant, and the above co-defendant 1 in the judgment below stated the above 24th day on the deposit account account of the defendant's non-indicted 3 and non-indicted 3's non-indicted 3 and the above co-defendant 1700,000 and the above co-defendant 1600.

Of the acts of fraud by Defendant 1, each of the above acts constitutes several crimes under Articles 347(1) of the Criminal Act, cover each victim, and each of the above acts constitutes Articles 234, 231 of the Criminal Act, and Articles 347(1) and 32(1) of the same Act, and each of the acts of aiding and abetting and abetting and aiding and abetting and aiding and abetting and aiding and abetting Defendant 2 falls under Articles 347(1) and 32(1) of the same Act. Article 1-2(f) of the same Act provides that one of the acts of using the above investigation documents constitutes several crimes under Articles 40 and 50 of the same Act, which shall be punished by imprisonment with prison labor for the most severe punishment of Defendant 2 under Articles 32(2) and 50 of the same Act, and Article 35(1)3 of the same Act provides that the punishment of Defendant 1 among the crimes of fraud and aiding and abetting Defendant 2 shall be punished by imprisonment with prison labor for each of the above crimes under Articles 32 and 57(2) of the same Act.

Of the facts charged of this case against Defendant 1, the same defendant, as stated in paragraph (1) of this case, is about the part that he acquired a total of KRW 108,50,00 from each victims as stated in paragraph (1) of this case, and constitutes Article 3 (1) 3 of the Act on Special Cases, and Article 347 (1) of the Criminal Procedure Act. The above part of the facts charged is not a mere fraudulent act due to his fraud, but a simple fraudulent act, and it is obvious that the act of defraudation by the same defendant constitutes the above special law by covering all victims and constitutes a crime of fraud. However, even if the criminal intent of each victim is single and the method of fraud is the same, it cannot be evaluated as a blanket crime, unless there are special circumstances that habituality is recognized, and there is no evidence to acknowledge the fraud of the defendant in this case, and the above part of the facts charged does not constitute a crime of fraud which constitutes a crime of fraud of 100 won or more, and thus, it does not constitute a comprehensive fraud of each victim.

Until July 2, 1990, Non-Indicted 2, an applicant for compensation, filed an application for compensation with Defendant 1 for the payment of KRW 23,00,000,00 with the amount obtained by deceit against the applicant. According to each of the above evidence and the records, it is not recognized that the scope of the liability to compensate the same defendant against the applicant is clear, and it is recognized that there is a concern that the procedure of trial will be considerably delayed due to the compensation order. Thus, it is decided to dismiss the application for compensation of this case in accordance with Article 32(1), (2), and Article 25(3)3, and (4) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

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

Judges Song Jae-sik (Presiding Judge)