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(영문) 창원지방법원 2013.11.29 2013노944
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
Text

The judgment of the court below is reversed.

Defendant

A 3 years of imprisonment, Defendant B 3 years of imprisonment, and Defendant C 2 years of imprisonment.

Reasons

1. The summary of the grounds for appeal is unreasonable because the punishment (for each of the defendants A, B, and D, 4 years of imprisonment, and 3 years and 6 months of imprisonment) declared by the court below against the defendants is too unreasonable.

2. We examine ex officio prior to the judgment on the grounds for appeal for ex officio determination.

The prosecutor changed the term “violation of the Punishment of Violences, etc. Act (Joint Confinement)” from among the names of Defendants A, B, and C as “violation of the Punishment of Violences, etc. Act (Joint Confinement)” and changed the term “Violation of the Punishment of Violences, etc. (Joint Intimidation)” from among the names of the Defendants to “Violation of the Punishment of Violences, etc. Act (Joint Intimidation)” (Joint Intimidation). Of the applicable provisions of Articles 3(1) and 2(1)2 of the Punishment of Violences, etc. Act, “Article 276(1) of the Criminal Act” from among the applicable provisions of Articles A, B, and C, “Article 2(2) and (1)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act” to “Article 3(1) and Article 2(1)1 of the Punishment of Violences, etc. Act, and Article 283(1) of the Criminal Act to “Article 2(2)1 of the Punishment of Violences, etc. Act” and Article 28(1)3) of the Criminal Act.

As a result, the part of the judgment of the court below on the violation of the Punishment of Violences, etc. by Defendants A, B, and C, and the part on the violation of the Punishment of Violences, etc. by Defendants (a collective, deadly weapons, etc.) cannot be maintained as it is because the subject of the judgment is changed. The above part and the remaining part by each Defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below cannot be maintained any longer

3. Accordingly, the judgment of the court below is without examining the defendants' assertion of unfair sentencing, on the ground of the above reasons for reversal of authority, and Article 364 (2) and (3) of the Criminal Procedure Act.

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