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(영문) 춘천지방법원 강릉지원 2017.01.12 2016노498
점유이탈물횡령등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s punishment (two months of imprisonment) is too unreasonable.

2. Before determining the grounds for appeal by the Defendant, the lower court’s judgment on the violation of the Act on Specialized in Credit Financial Business is examined ex officio.

In a case where a single and continuous criminal act repeatedly committed the same kind of crime under the same or similar criminal intent for a certain period and the benefit and protection of the same legal interest is the same, each of the crimes shall be deemed a single comprehensive crime (see Supreme Court Decision 96Do1181, Jul. 12, 1996, etc.). Examining the aforementioned legal principles and evidence duly adopted and investigated by the court below, the Defendant’s unlawful use of a credit card lost by another for four times from January 10, 2016 to 00:29,000 to 04:38, a single and continuous criminal act committed by the lost credit card member stores to purchase goods from the lost credit card member stores by the same way as the criminal facts stated in the judgment below, and all the benefit and protection of the law from the unlawful use of each credit card are the same as the safety of transaction using the same credit card and trust to the public, so the Defendant’s act of unlawful use of the same credit card as above constitutes a violation of the law specialized in financial business.

Nevertheless, the court below aggravated concurrent crimes by deeming the defendant's illegal use of each credit card as a separate crime. In so determining, the court below erred by misapprehending the legal principles on the single comprehensive crime, thereby adversely affecting the conclusion of the judgment.

Since the above crime and the other crimes in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment should be sentenced, the judgment of the court below can no longer be maintained.

3. The judgment of the court below is based on the above ex officio reversal, and without examining the defendant's unfair argument of sentencing, Article 364 of the Criminal Procedure Act.

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