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(영문) 대구고등법원 2021.02.03 2020노356
특정경제범죄가중처벌등에관한법률위반(배임)등
Text

All judgment of the court below shall be reversed.

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

3.Provided, That this judgment has become final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1 and 2’s punishment (the first instance court: 5 years of imprisonment, 8 months of imprisonment, and 2 years of suspended sentence) against Defendant 1 and the second instance court (the first instance court: the second instance court; 8 months of suspended sentence: 2 years of suspended sentence) is unfair because it is too unreasonable (the Defendant, as to the first instance court’s judgment, did not err by misapprehending the legal principles, or by misapprehending the legal principles, was also the ground for appeal against the lower court, but the Defendant withdrawn the above assertion on the third trial date of this court). (B) In violation of the Prosecutor (the first instance court’s judgment as to the first instance court)’s legal principle, the first instance court, contrary to the principle of unfavorable and unfavorable, committed an

2) The sentence of the lower court against the Defendant 1 is too unhued and unfair.

2. Determination

A. 1) In the appellate court, the Prosecutor filed an appeal against the judgment of the court of first instance against the defendant in the consolidated proceedings in the appellate court, and this court decided to hold concurrent hearings of the above appeal cases. The crimes of the first and second judgment are concurrent crimes under the former part of Article 37 of the Criminal Act, and one punishment should be imposed pursuant to Article 38(1) of the Criminal Act. Thus, the judgment of the court below cannot be maintained as they are.

2) The prosecutor of the Amendments to Bill of Indictment applied for the amendment of Bill of Indictment to add the charges of breach of Trust against the victim BI in the indictment of the first instance judgment against the defendant as stated in the following facts: (a) the court applied for the amendment of Bill of Indictment to add the charges of breach of Trust against the victim BI (the No. 11 of the crimes listed in annexed Table 1 of this Court); (b)

In this respect, the judgment of the first instance can no longer be maintained.

However, even under the revised facts charged, it is necessary to determine the prosecutor's assertion of misunderstanding the legal principles on the judgment of the court of first instance.

B. Judgment on the Prosecutor’s assertion of misapprehension of the legal doctrine is 1) The court may not render a judgment unless a prosecutor’s indictment is instituted in accordance with the principle of disadvantage.

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