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(영문) 춘천지방법원 2018.01.17 2017노1064
업무방해
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The Defendant was physically and mentally weak at the time of committing the crime.

B. The punishment of the lower court (six months of imprisonment) is too unreasonable.

2. Determination

A. It is recognized that the Defendant had drinking alcohol at the time of each crime in the judgment of the court below, but, in light of the background leading up to the crime, the means and method of the crime, and the circumstances before and after the crime, there was a state in which the Defendant had the ability to discern things or make decisions.

It is not visible that the defendant's criminal records are 13 criminal records of the same kind (crimes of violence).

In light of the above, each crime committed by the defendant in the holding of the court below is deemed to constitute a free act at least in the cause of negligence under Article 10 (3) of the Criminal Code, and this part of the defendant's assertion is not accepted.

B. Determination 1 on an unfair assertion of sentencing is based on statutory penalty, and a discretionary judgment is made within reasonable and appropriate scope, taking into account the factors constituting conditions for sentencing under Article 51 of the Criminal Act, based on the statutory penalty.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

In the absence of such exceptional circumstances, it is desirable to respect the first-class sentencing determination (Supreme Court Decision 23 July 23, 2015).

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