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(영문) 서울고등법원 (춘천) 2016.01.20 2015노214
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Provided, That the above punishment shall be imposed for a period of four years from the date this judgment becomes final and conclusive.

Reasons

The gist of the grounds for appeal is as follows: (a) the victim misunderstanding the facts of the defendant was on board the vehicle in which the defendant was driving by himself; (b) the victim was either bound by electric lines from the vehicle to the victim or was not at prices; and (c) the victim did not have sexual intercourse with the victim; (d) the court below found the defendant guilty of violating the Punishment of Violences, etc. Act (a collective deadly weapon, etc.), rape, and confinement among the facts charged in the instant case where only the victim’s unilateral statement was believed to be unhu

The punishment sentenced by the court below (three years of imprisonment, four years of suspended sentence) is too unreasonable.

It is also unreasonable that the sentence imposed by the lower court prior to the public prosecutor is too light, and that the disclosure order is exempt even if there is a risk of recommitting a crime.

We examine ex officio the reasons for appeal of ex officio.

Of the facts charged in the instant case, the lower court applied Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences”) and Article 257(1) of the Criminal Act to the part that inflicted an injury on the victim as a dangerous object.

In this regard, the former Punishment of Violence Act, which provides that a person who commits an act of violence by carrying a deadly weapon or other dangerous object and punished as imprisonment with prison labor for more than three years, has no provision on punishment for a limited term. In light of the developments leading up to the revision, etc., it may be viewed that the previous statutory punishment was too difficult. Thus, the above part of the facts charged should no longer be applied, and Article 258-2 (1) of the Criminal Act (special injury) should be applied to the same provision newly established on the same day to replace it.

Therefore, the judgment of the court below cannot be maintained as it is.

The grounds for reversal ex officio prior to the judgment of the court below as to whether to mislead the facts.

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