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(영문) 창원지방법원 2020.08.21 2019노2489
업무상횡령등
Text

The conviction part of the judgment of the court of first instance and the judgment of the court of second instance shall be reversed.

A defendant shall be punished by imprisonment for a term of one year and eight months.

Reasons

1. Summary of grounds for appeal;

A. Defendant (as to the second judgment of the court below), the sentence of the court below (one year and six months of imprisonment) is too unreasonable.

B. The first instance court dismissed the prosecution concerning the violation of the Labor Standards Act and the violation of the Guarantee of Workers' Retirement Benefits Act among the facts charged in the instant case, and convicted the remainder of the facts charged.

In regard to this, the prosecutor only appealed the appeal, while the scope of the appeal submitted by the prosecutor is stated as "total amount," but there is no statement in the petition of appeal or the grounds of appeal concerning the dismissal of public prosecution among the judgment of the court of first instance, and the grounds of appeal are only stated as "unfair sentencing on the part of the offense," it is reasonable to deem that there is no appeal regarding the dismissal of public prosecution.

The sentence of the lower court (one year of imprisonment, two years of suspended execution, and two hundred hours of community service) is too unhued and unreasonable.

2. Before determining the grounds for appeal by the Defendant and the prosecutor ex officio, the appeal cases against each judgment of the court below were examined and tried together with each other. Each of the crimes in the judgment of the court below in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, which are in a relation of concurrent crimes under Article 38(1) of the Criminal Act, should be sentenced to a single sentence within the scope of the term of punishment aggravated for concurrent crimes pursuant to Article 38(1) of the Criminal Act. Thus, the conviction portion of the judgment of the court of first instance

3. As such, the part of the judgment of the court of first instance and the judgment of the court of second instance are reversed, and the judgment of the court of first instance is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the grounds for reversal of unfair sentencing by the defendant and the prosecutor, and the judgment of the court of second instance is reversed, and

【Grounds for the Judgment of the Supreme Court】 Summary of facts constituting a crime and evidence are recognized by the court.

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