(영문) 대전지방법원 2018.07.18 2018노823 | 리걸엔진

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(영문) 대전지방법원 2018.07.18 2018노823

법무사법위반등

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four months.

Reasons

1. The decision of the court below on the gist of the reasons for appeal (4 months of imprisonment) is too unreasonable.

2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant.

Where a crime for which judgment has not yet become final and conclusive could not be judged concurrently with a crime for which judgment has already become final and conclusive, the relationship between the latter part of Article 37 of the Criminal Act cannot be established. According to Article 39(1) of the Criminal Act, the sentence of punishment or the sentence may not be mitigated or exempted in consideration of equity and equity (Supreme Court Decision 2014Do469 Decided March 27, 2014). According to the records, ① the defendant was sentenced to a suspended sentence of two years for a year of imprisonment with labor at the Daejeon District Court on June 16, 2015, and the judgment became final and conclusive on November 5, 2015; ② the defendant was sentenced to four months of imprisonment with prison labor at the Daejeon District Court on June 13, 2017, and the above judgment became final and conclusive on January 25, 2018; ② the above judgment was made from October 27, 2011 to December 21, 2015.

Therefore, even though there is no room to apply Article 39(1) of the Criminal Act with respect to the above ② Crimes and the instant crimes, the relationship between the latter part of Article 37 of the Criminal Act cannot be established, and there is no room to apply Article 39(1) of the Criminal Act between the above crimes and the instant crimes, the lower court held that there exists a relationship between the above crimes and the instant crimes

In light of the foregoing, the principle of equity has been taken into account when a judgment is rendered at the same time pursuant to Article 39(1) of the Criminal Act. The judgment of the court below is erroneous in the misapprehension of legal principles as to concurrent crimes by the latter part of Article 37 of the Criminal Act, which affected

3. Thus, the judgment of the court below is reversed on the ground that there is a ground for reversal as above.

참조조문

-형법 제37조

-형법 제39조 제1항

참조판례

-대법원 2014. 3. 27. 선고 2014도469 판결

유사 판례

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