(영문) 서울고등법원 2018.02.07 2017노1151 | 리걸엔진

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(영문) 서울고등법원 2018.02.07 2017노1151

특정경제범죄가중처벌등에관한법률위반(사기)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) by the lower court (two years of imprisonment) is too unreasonable.

At the second trial date, the defendant and defense counsel explicitly withdrawn the misconception of facts and misapprehension of legal principles during the grounds of appeal.

2. The Defendant’s crime of this case is inevitable to sentence the Defendant with sentence, considering the following: (a) the Defendant’s act of producing the drama in the course of entertainment business is uncertain; (b) the Defendant received a large amount of investment amount of KRW 500 million by providing a claim without secured value as security; and (c) the nature and circumstances of the crime are not weak; (d) even though the Defendant partly repaid the amount of damage incurred to recover the damage; and (e) the Defendant has not yet recovered a significant portion of the loss suffered by the victim; and (e) the victim is punished against the Defendant.

However, there are circumstances favorable to the defendant, such as the fact that the defendant does not intend to acquire the investment money in bad faith from the beginning, but is deemed to have invested in the process of investment by the victim, and that the criminal intent and the degree of deception are relatively weak, that the defendant recognized all the criminal facts in the trial and took an attitude against the defendant. The defendant has continuously endeavored to recover the damage by repaying the victim with the repayment of KRW 90 million to the victim and depositing KRW 100 million in the trial before the pronouncement of the judgment of the court below, and that the defendant has no criminal record, etc.

In full view of all the sentencing conditions as shown in the records and arguments of this case, including the Defendant’s age, sex, family relationship, environment, and circumstances after the crime, the lower court’s punishment is deemed unfair due to its failure.

3. The appeal by the defendant is with merit, and the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is subject to pleading.

유사 판례

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