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(영문) 춘천지방법원 강릉지원 2013.12.10 2013노220
마약류관리에관한법률위반(향정)
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for three years.

12,100,000 won from the defendant.

Reasons

The sentencing (two years of imprisonment) of the original court (two years of imprisonment) is too unreasonable.

Before making a judgment on the grounds for reversal due to a consolidation of judgment ex officio, the defendant filed an appeal against the judgment of the court below, and this court decided to concurrently deliberate on each of the above appeals cases. Since each of the offenses of the judgment of the court below is in a concurrent relationship under the former part of Article 37 of the Criminal Act, it 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, the judgment of the court below cannot be exempted from all of the reversals.

According to the misapprehension of legal principles as to repeated crimes and the record, the defendant was sentenced to eight months of imprisonment on August 4, 201 for violation of the Narcotics Control Act in Seoul Central District Court 201Da1905 Decided August 4, 201, and this judgment became final and conclusive on February 23, 2012 by a judgment of the Supreme Court, and the defendant was detained in the Seoul Detention Center as the above case, and was released from the detention center on November 29, 201 where the appellate court had been pending.

Article 35(1) of the Criminal Act provides, “A person who was sentenced to imprisonment without prison labor or a heavier punishment and commits a crime corresponding to imprisonment without prison labor or a heavier punishment within three years after the execution thereof is completed or exempted shall be punished as a repeated crime.”

In this case, the execution of sentence is not immediately executed on the premise that the judgment became final and conclusive, and even if the sentence was detained as much as the sentence sentenced prior to the final and conclusive judgment, it cannot be said that the execution of sentence was terminated.

Therefore, on November 29, 201, the defendant was released from custody on the revocation of detention.

Even if this cannot be viewed as the completion of the execution of punishment, and since the above imprisonment was finalized by the Supreme Court on February 23, 2012, the execution of the above imprisonment was terminated because the whole number of days pending trial was included in the above imprisonment. Thus, the defendant is within three years after February 23, 2012.

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