(영문) 대구고등법원 2013.7.11.선고 2013노166 판결

(1) Despite the fact that 13 of each of the victims of this case is a female, the court below selected four of the seven jurors in the participatory trial as a female, and there was a concern for unfair judgment as a female, and the prosecutor of the public trial was also in fact unfair, and as a result, the defendant was sentenced to an excessive sentence.

(2) Since the applicable law for each of the larcenys in this case is already known to many people, it does not constitute "a case where a person repeatedly commits a crime using a special veterinary method". In addition, despite the application of the aggravated aggravation of habitual offenders under the Act on the Aggravated Punishment, etc. of Specific Crimes and the aggravated aggravation of repeated crimes under the Criminal Act, it is unreasonable to apply the above reasons to a special penal person, which

(3) The lower court omitted the return of one gold boom, which is part of the gold boom that was seized, and one water boom that is a part of the gold boom.

(4) Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is a applicable provision to each larceny crime in the judgment of the court below, is unconstitutional because the statutory penalty is too excessive to be contrary

B. Unreasonable sentencing

The punishment sentenced by the court below (4 years in the year of 4 years in prison) is too unreasonable.

2. Determination

A. Judgment on the assertion of violation of law

(1) The assertion about the composition of jurors, etc.

Considering the following circumstances, the selection of the jury by the court below, which was conducted as a participatory trial, cannot be deemed unlawful.

① Among the jurors of the lower court, there is no person selected as a juror who falls under Articles 17 through 19 of the Act on Citizen Participation in Criminal Trials (hereinafter referred to as the “Act”).

(2) ① The Defendant’s defense counsel attended the selection date of the jury, and was guaranteed the Defendant’s procedural right to participate in the selection of the jury at the trial, such as the right to ask questions, the right to ask questions, and the right to apply for challenge under Article 28 of the Act, and the right to apply for challenge under Article 30 of the Act. In fact, the Defendant’s defense counsel applied for peremptory challenge against three of the prospective jurors and was not selected as the juror. As such, the lower court given the opportunity to exclude the prospective juror unfavorable to the Defendant in

③ Even if the prosecutor involved in the public trial is a woman and the majority of the victims of each of the crimes of this case are women, considering the content of the crime of this case, it cannot be deemed that there is a risk of unfair judgment solely on the ground that the prospective juror is a woman. Thus, the court does not have any reason to make ex officio a non-preferred decision against the female prospective juror.

(B) Also, there is no finding that the Defendant’s right to defense was unreasonably restricted and illegal in the course of a public trial on the record (the Defendant asserts that the Defendant was sentenced to an excessive heavy sentence as a result of the unfair progress of the public trial process by the lower court, but the lower court’s sentence is more than five years’ imprisonment and less than five years’ imprisonment, which was sentenced by the lower court prior to the reversal and return that did not proceed as a participatory trial). Accordingly, this part of the Defendant’s assertion is

(2) According to the sentencing guidelines for larceny, the argument about the application of a person who is a aggravated factor constitutes a case where "the use of a certain number of methods, technology, etc." is not simply used for monitoring, etc. in the acquisition and transportation of damaged articles or possession of damaged articles. It is obvious that each of the larceny crimes of this case in the judgment of the court below is "the use of a certain number of methods, etc. in the acquisition and transportation of possession", and as long as the defendant repeats each of the larceny crimes by using such methods, it is judged that the above aggravated factors are the special sentencing factors. In addition, the sentencing guidelines are merely referenced to the date determined by the court below to actually sentence the defendant within the scope of the punishment that can be sentenced by law, and the above sentencing guidelines do not increase the punishment itself, so it cannot be deemed that the punishment is aggravated as alleged by the defendant due to the application of the sentencing guidelines reflecting the above special sentencing factors.

(3) Claim as to the return of seized property

According to the records, one gold-halfs seized and one blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish bl

(4) Claim for unconstitutionality of applicable provisions of law

Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special BaBa") provides that the short-term punishment shall be aggravated by two times unlike repeated crimes under the Criminal Act. Unlike repeated crimes, the former and latter crimes are related to habitual larceny crimes subject to aggravated punishment by special law (hereinafter referred to as "Habitual larceny under special Aggravated Punishment Act"), and in particular, as the requirements for the former crimes require more strict requirements than repeated crimes under the Criminal Act, and this provision applies only to those cases where the warning of the preceding judgment functions to suppress substantially the same crime, and thus, it is more likely to criticize such repeated crimes than those under the Criminal Act. Therefore, the legislative purpose of the same Act cannot be deemed as excessive punishment than those under the Criminal Act, even if the short-term punishment is aggravated by two times separately from repeated crimes under the Criminal Act, for the reason that the latter crimes are subject to aggravated punishment than those under the Act on the Aggravated Punishment, etc. of Specific Crimes, and there is no need to punish more than three times the same punishment under the same Act.

Therefore, this part of the defendant's assertion is rejected, since the legal provision of this case cannot be seen as contrary to the principle of excessive regulation under the Constitution, the principle of proportionality, the right to equality, and the jurisdiction.

B. Determination on the assertion of unfair sentencing

Along with the fact that the defendant's criminal act is recognized, the defendant has been repented, his failure to adapt to society after being released, and his life appears to have been prevented from committing each of the crimes of this case, and some of the larceny damages were returned to the victims or temporarily returned to the victims, etc.

On the other hand, the Defendant had been punished several times for a crime, such as the same larceny, and, in particular, on December 25, 201, after having been sentenced to imprisonment for three years and six months due to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. on the Aggravated Punishment, etc. of Specific Crimes, the Defendant again repeated each of the larceny crimes, etc. of the same case from the time when ten days have not passed thereafter, even though the execution of the sentence was completed on December 25, 2011. Therefore, it is doubtful whether the Defendant has made the best efforts to adapt to society after the discharge as alleged by the Defendant. Each of the crimes of this case is likely to be subject to criticism as they committed the larceny and two times against the elderly who were based on the frame, and is also planned and intelligent. The Defendant was unable to agree with the victims, and no such circumstance is found that the damage recovery was made by means of deposit, etc.

In addition to these points, comprehensively taking account of various circumstances, including the age, character and conduct, intelligence and environment of the defendant, motive of the crime, and circumstances after the crime, etc., the sentence imposed by the court below within the scope of recommended sentencing guidelines is too unreasonable because it is too unreasonable by referring to the jury's opinions in the citizen participation trial.

3. Conclusion

Thus, the defendant's appeal is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act.