2018No200

A

Defendant

The court below's holding of office and the court below's holding of office;

Incheon District Court Decision 2017 High Court Decision 2658 Decided January 12, 2018

November 23, 2018

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

(a) Mental and physical disorder;

The Defendant, while under the influence of alcohol at the time of committing each of the crimes in this case, failed to reduce the punishment or not guilty, erred by misapprehending the legal principles on mental and physical disorder, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment (fine 2.5 million won) sentenced by the court below is too unreasonable.

2. Determination

A. Determination on the assertion of mental disorder

According to the evidence duly adopted and examined by the court below, even though the defendant was in a drinking condition at the time of each of the crimes of this case, it cannot be deemed that the defendant had no or weak ability to discern things or make decisions due to the fact in light of the circumstances of each of the crimes of this case, contents, and circumstances after the crime. The defendant's mental and physical disability argument is without merit.

The Criminal Procedure Act, which takes the principle of trial-oriented and directness, should respect the determination of sentencing in cases where there exists no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

As new sentencing data is not submitted in the trial of the original court, there is no change in the conditions of sentencing compared with the original court. In full view of the circumstances shown in the records and arguments of this case, the sentencing of the original court is not recognized to have exceeded the reasonable scope of discretion because it is too big.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Appointment of presiding judge and appointed judge;

Judges Kim Gin-han

Judges Lee Young-young