When both imprisonment and a fine are to be imposed concurrently, whether discretionary mitigation shall be made to the fine in the event of discretionary mitigation.

Where the punishment of imprisonment and a fine are to be imposed concurrently, the punishment of imprisonment shall not be mitigated, unless there is a special provision, and the amount of a fine shall also be mitigated concurrently.

Articles 53 and 55 of the Criminal Act, Article 5 of the Act on Special Measures for the Control of Public Health Crimes

Defendant

Prosecutor

Jeonju District Court of the first instance (77Gohap8) and Eup Branch Court of the first instance (77Gohap8)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a year and a fine of KRW 100,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 2,000 into one day.

The detention days prior to the declaration of the original judgment shall be included in the above imprisonment for forty days.

However, the execution of the above imprisonment shall be suspended for two years after the judgment becomes final and conclusive.

Goods recorded in the attached list that have been seized shall be forfeited from the accused.

In order to order the provisional payment of an amount equivalent to the above fine.

The summary of the grounds for appeal by the prosecutor is that the sentencing of the court below against the defendant is too unfasible, but the sentencing of the court below should be imposed concurrently by imprisonment with prison labor and a fine, such as in the case of imprisonment with prison labor, ex officio, and in the case of this recommendation, a discretionary mitigation shall not be limited to imprisonment with prison labor, unless there is a special reason for discretionary mitigation, and a discretionary mitigation shall be limited to a fine concurrently imposed. However, the court below erred by misunderstanding the legal principles for discretionary mitigation, which affected the judgment, and thus, the judgment of the court below cannot avoid reversal.

Therefore, the judgment of the court below is reversed ex officio in accordance with Article 364(2) and (6) of the Criminal Procedure Act, without examining the grounds for appeal by the prosecutor.

The summary of criminal facts and evidence against the defendant recognized as a party member is the same as the time of original adjudication, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

In the case of the defendant's original trial, the so-called 's imprisonment' falls under Article 5 of the Act on Special Measures for the Control of Public Health Crimes and Article 25 of the Medical Service Act, and the defendant is to select a limited term of imprisonment and to concurrently impose a fine pursuant to the latter part of Article 5 of the above Act. Since there are reasonable grounds for considering the circumstances, the defendant is to be punished by imprisonment with prison labor for one year and a fine for 100,000 won within the scope of a reduced term of punishment and amount under Article 53, Article 55 (1) 3 and 6 of the Criminal Act. When the defendant fails to pay the above fine pursuant to Articles 70 and 69 (2) of the above Act, 2,00 won shall be confined to the old prison for the period of converting the above fine into one day, 40 days out of the detention days prior to the sentence pursuant to Article 57 of the above Act, and the defendant is to be punished by imprisonment with prison labor for 63 years and has been sentenced to a fine under Article 68 (1) of the above Act.

It is so decided as per Disposition for the above reasons.

[Attachment Omission]

Judges Lee Sung-sung(Presiding Judge)