(영문) 인천지방법원 2016.03.18 2015노4749 | 리걸엔진

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(영문) 인천지방법원 2016.03.18 2015노4749

특수절도등

Text

The part of the judgment of the court of first instance against the defendant and the judgment of the court of second instance shall be reversed respectively.

A defendant shall be punished by imprisonment for not less than eight months.

Reasons

1. The first instance court found Defendant guilty of only smartphones and walletss among the facts charged that “the Defendant, together with A and C, stolen a bank containing KRW 3 smartphones and cash 80 million in the market price of the victim’s ownership, and a bank containing KRW 12 million in cash,” and acquitted Defendant on the part containing KRW 12 million in cash.

On the other hand, only the defendant filed an appeal for the reason that the sentencing was unfair, and the prosecutor did not file an appeal for the verdict of innocence, and the acquittal portion of the reasons in the judgment of the first instance court in accordance with the indivisible principle of appeal was also judged to have been exempted from the object of public defense between the parties.

Therefore, the conclusion of the judgment of the first instance court should be followed with respect to this part.

In the end, the scope of the judgment of this court is limited to the conviction of the defendant among the judgment of the court below, and it is not judged again on the acquittal of the first instance judgment which shares the conclusion.

2. The punishment of the first instance judgment (the imprisonment of eight months) and the punishment of the second instance judgment (the imprisonment of two months) against the accused as to the summary of the grounds for appeal is too unreasonable;

3. Ex officio determination, the defendant filed an appeal against the judgment of the court below Nos. 1 and 2, and this court decided to hold concurrent hearings of the above two appeals cases. The crimes of the court Nos. 1 and 2 with respect to the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, and one punishment should be imposed pursuant to Article 38(1) of the Criminal Act. Thus, the part against the defendant among the judgment of the court of first instance and the judgment of the court of second instance cannot be maintained.

4. Accordingly, the judgment of the court below is reversed on the ground that there are reasons for reversal of the above authority, and the part of the judgment of the court of first instance as to the defendant's unfair argument of sentencing is omitted.

참조조문

-형법 제38조 제1항

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