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(영문) 서울동부지방법원 2018.05.25 2018노130
사기등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Reasons

1. Reasons for appeal;

A. In light of the above legal principles, the Defendant committed each of the instant crimes under the mental and physical weakness due to alcohol dependence.

B. The sentence of the lower court’s unfair sentencing (No. 1: imprisonment with prison labor for 6 months and 2 months: imprisonment with prison labor for 4 months) is too unreasonable.

2. The appeal case against the judgment below was consolidated at the court below's ex officio reversal following the consolidation, and each crime of the judgment below constitutes concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, one punishment should be imposed pursuant to Article 38 of the Criminal Act. Thus, the judgment of the court below cannot be maintained any more.

However, even in this case, the defendant's argument of misunderstanding the legal principles based on the defendant's mental and physical weakness is still subject to the judgment of this court.

3. According to the evidence duly admitted and examined by the lower court regarding the assertion of misunderstanding of the legal doctrine based on mental and physical weakness, the Defendant was deemed to have had the ability to discern things or make decisions due to alcohol dependence at the time of each of the instant crimes, in full view of all the circumstances indicated in the record, such as the background, means and method of each of the instant crimes, and the Defendant’s act before and after the instant crimes.

It does not seem that it does not appear.

Even if the Defendant committed each of the instant crimes, he was physically and mentally weak due to alcohol dependence;

In light of the fact that the Defendant had been punished by committing a crime interfering with duties under the influence of alcohol several times even before each of the crimes in this case, the Defendant predicted his act that was at risk of committing a crime after drinking and caused the mental and physical disorder by himself even though he predicted it in advance.

As such, Article 10(3) of the Criminal Act is applicable to the above act of the defendant, so it cannot be reduced by law due to mental and physical weakness.

Therefore, the defendant's argument of misunderstanding the legal principles due to mental and physical weakness is without merit.

4. Conclusion.

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