(영문) 광주지방법원 2020.04.16 2019노3239 | 리걸엔진

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Reasons

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줄 간격

자간(%)

(영문) 광주지방법원 2020.04.16 2019노3239

절도등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Seized evidence No. 1 shall be confiscated.

Reasons

1. Summary of grounds for appeal;

A. The lower court, while recognizing the Defendant guilty of committing a crime of special intimidation, did not confiscate subparagraph 1, which the prosecutor attempted to confiscate as a tool used for committing the crime.

Such determination by the court below is unlawful as it deviates from the limitation of discretionary power to determine whether to confiscate.

B. The lower court’s sentence of unreasonable sentencing (one year of imprisonment) is too unhued and unreasonable.

2. Judgment on the misapprehension of the legal principle of prosecutor

A. Since confiscation under Article 48(1) of the Criminal Act is discretionary, the issue of whether to confiscate an object subject to confiscation (hereinafter “objects”) is left at the discretion of the court. However, the degree and scope used in the commission of the crime and the importance of the crime in order to determine whether the confiscation violates the principle of proportionality, the degree and degree of responsibility of the owner of the object in the commission of the crime, degree of infringement of legal interests by the commission of the crime, separate possibility of separation of the part related to the commission of the crime, actual value of the object, relationship and balance with the object, whether the object is essential to the offender, and the risk and degree of the occurrence of the same crime in the event that the object is not confiscated, etc. shall be considered by taking into account all the circumstances, including the degree and degree of the object used in the commission of the crime, degree of the owner’s role and responsibility in the commission of the crime, degree of infringement of legal interests by the commission of the crime, separate possibility of the commission of the crime, actual value of the object, degree of the crime and balance with the object.

(see, e.g., Supreme Court Decision 2012Do11586, May 23, 2013). B.

Judgment

The following circumstances revealed by the evidence duly adopted and investigated by the court below, namely, ① the evidence No. 1 seized, is the defendant's Rarain who provided for special intimidation, ② it appears to have been used for committing the crime of paragraph (2) of the facts charged in the case No. 2019No. 2367. ③

참조조문

-형법 제48조 제1항

참조판례

-대법원 2013. 5. 23. 선고 2012도11586 판결

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