Defendant

Prosecutor

Kim Jong-gu (Court Prosecution) and Kim Dae-dae (Court Trial)

Attorney Park Tae-tae (National Assembly)

Seoul Southern District Court Decision 2014Gohap271, 2014Gohap308 (Joint) and 2014Gohap533 (Joint) Decided December 3, 2015

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by a fine of KRW 10,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

1. Summary of grounds for appeal;

The sentence of the court below (the fine of KRW 10,000,000) against the defendant is too unfluent and unfair.

2. Ex officio determination

According to the records, on May 9, 2013, the defendant was sentenced to a suspended sentence of ten months for a violation of the Act on the Control of Narcotics, etc. at the Seoul Central District Court on the 17th of the same month, and the above judgment became final and conclusive on October 8, 2014, and on the 16th of the same month, the defendant was sentenced to a suspended sentence of ten months for a crime of fraud at the Suwon District Court on October 8, 2014, and the above judgment became final and conclusive on the 16th of the same month. Each of the above crimes against the defendant, for which the judgment of the court below was final and conclusive, are concurrent crimes under the latter part of Article 37 of the Criminal Act, and shall be sentenced to a punishment for the crime of this judgment at the same time taking into account

3. Conclusion

The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor's allegation of unfair sentencing, since the part of the judgment of the court below against the defendant constitutes an ex officio reversal as above, and the judgment below is ruled as follows.

The summary of the facts charged by this court against the defendant and the evidence related thereto are as follows: "The defendant was sentenced on May 9, 2013 by the Seoul Central District Court on the 17th of the same month to the suspension of the execution of ten months of imprisonment for the violation of the Act on the Control of Narcotics, Etc. (fence) at the Seoul Central District Court on the 6th and 7th of the judgment of the court below, and the above judgment became final and conclusive on October 8, 2014 on the 16th of the same month upon the sentence of two years of the suspension of the execution of ten months of imprisonment for fraud at the Suwon District Court on the 17th of the same month." The above judgment was finalized on October 8, 2014 during the 6th and 7th of the 17th of the judgment of the court below, except for the addition of "the defendant's legal statement, criminal records and investigation records inquiry, and each

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 43(1)4 and 5 of the former Capital Markets Act (Amended by Act No. 11845, May 28, 2013); Article 176(1)1, 2, 3, and 176(2)1 of the same Act; Article 30 of the Criminal Act (amended by Act No. 11845, May 28, 201); Article 30 of the Criminal Act (Joint Selection of Fines)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

The punishment as ordered shall be determined by comprehensively taking into account various factors of sentencing, such as the degree of defendant's participation in the crime, the scale of gains acquired, and the age, character and conduct, motive, means and consequence of the crime, and the circumstances after the crime, etc.

Judges Lee Il-man (Presiding Judge)