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(영문) 서울서부지방법원 2020.02.13 2019노1091
보험사기방지특별법위반등
Text

The judgment of the court below is reversed.

The defendant is punished by imprisonment with prison labor for each of the crimes listed in the annexed Table 1 and 2.

Reasons

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

2. According to the records of ex officio determination, the following facts are acknowledged: (a) on November 18, 2015, the Seoul Western District Court sentenced one year of imprisonment with prison labor for fraud, etc. at the Seoul Western District Court on September 20, 2016, and the judgment became final and conclusive on September 20, 2016 (hereinafter “the first final and conclusive judgment”); (b) on November 19, 2015, the Defendant was sentenced to 8 months of imprisonment with prison labor for special larceny and 2 years of suspended sentence on November 27, 2015 (hereinafter “the second final and conclusive judgment”).

As above, each crime committed before the judgment becomes final and conclusive and each crime of fraud listed in the annexed Table 1 and 2, which was committed before the judgment becomes final and conclusive, is in a concurrent relationship under the latter part of Article 37 of the Criminal Act, and shall be sentenced at the same time in consideration of equity and cases where a judgment is to be rendered at the same time

In addition, since the date of the crime of the second final judgment is before the date of the final judgment of the first final judgment, each crime of the attached Table 5,8,9, committed between the date of the final judgment of each of the above final judgment, cannot be applied to the crimes of the second final judgment at the same time, and Article 39 (1) of the Criminal Act is not applicable to the crimes of the second final judgment at the same time, but it cannot be deemed that Article 38 of the Criminal Act applies to each of the crimes committed after the second final judgment, as if there is no second final judgment, Article 38 of the Criminal Act is applicable to the crimes of the attached Table 5,8,9, each of the crimes committed after the second final judgment, and each of the crimes committed after the second final judgment cannot be established with any of the concurrent crimes of the attached Table 5,8,9, each of the crimes committed after the second final judgment, and the second final judgment shall be determined and sentenced separately for each of the crimes.

Therefore, the decision of the court below on the whole of each crime is erroneous in the misapprehension of legal principles as to concurrent crimes, which affected the conclusion of the judgment.

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