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(영문) 대구고등법원 2018.04.18 2017노626
특정경제범죄가중처벌등에관한법률위반(사기)
Text

1. All the judgment of the court below (including the part not guilty of the reasoning for the decision of the first instance court) shall be reversed.

2. The defendant A shall be punished by imprisonment for three years.

Reasons

1. Summary of grounds for appeal;

A. The punishment sentenced by the first instance court to the Defendants (in the case of Defendant A: 5 years of imprisonment, Defendant B, and Defendant C: 2 years of imprisonment) and the punishment sentenced to the Defendant C by the second instance court (in the case of imprisonment with prison labor and in June), is too unreasonable.

B. Prosecutor 1) In light of the fact-misunderstanding (the non-guilty portion of the reasoning of the first decision) that the Defendants did not ask the above companies about whether the portion of the STS portion was used as a fertilizer prior to the purchase by AA, AB, and AC around 201, the Defendants did not ask or confirm whether the portion of the STS portion was used as a fertilizer. In general, in the fertilizer industry at the time, it appears that the sTS portion was produced by using the STS portion as a fertilizer. In light of the fact that the Defendants were aware that the portion of the sTS portion was used as a raw material in the sTS portion of the steic fertilizer purchased from the above companies.

Although it can be seen, the first instance court rendered a not-guilty verdict on this part of the facts charged, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) The sentence sentenced to Defendant B and C by the first instance court of sentencing (with respect to Defendant B and C) is too unhued and unreasonable.

2. In the trial of the first instance court, the prosecutor of the judgment ex officio applied for the amendment of the indictment with respect to the indictment of the first instance judgment as stated below (amended indictments). This court permitted the amendment, thereby changing the subject of the judgment.

In addition, with respect to Defendant C, the first and second judgments were rendered against Defendant C, and the prosecutor filed an appeal against the first and second judgments, and this court decided to consolidate the two cases. The above judgment of the court below against Defendant C is a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, one sentence should be imposed in accordance with Article 38(1) of the Criminal Act. Thus, the judgment of the court below against Defendant C can be maintained.

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