(영문) 수원지방법원 2013.9.5. 선고 2013노646 판결

1. Application for compensation order in Suwon District Court Decision 201Da2207, 2309 (Consolidation) and application for compensation order in early 2013 early 45, decided January 24, 2013;

2. Suwon District Court Decision 2013Ma935, 1128 (Consolidated) Decided April 18, 2013

3. Suwon District Court Decision 2013Ma1712 Decided July 12, 2013

Imposition of Judgment

September 5, 2013

Text

The judgment of the court of first instance, excluding the rejection of application for compensation, and 2 and 3 original judgments, shall be reversed respectively.

Defendant shall be punished by imprisonment for two years and by a fine of 300,000 won.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

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

Reasons

1. Summary of grounds for appeal;

A. Defendant (each of the lower judgment)

1) The assertion of mental disorder

The Defendant, at the time of committing each of the instant occupational embezzlement and each of the larcenys, was in a state of mental disorder or mental disorder due to a stimulative disorder that is difficult to restrain impulses.

2) The assertion of unreasonable sentencing

Each of the original judgments against the accused (the first instance judgment: 1 year of imprisonment, 4 months of imprisonment, and 30,000 won of imprisonment: 8 months and 300,000 won of fine) is too unreasonable.

B. Prosecutor (as to the first and second original judgment)

Each sentence of the court of first and second instance against the defendant is unfair because it is too unhued.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant and the prosecutor, the defendant and the prosecutor filed each appeal as above and tried jointly in the trial. Each of the crimes of the first or third court below against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act and a sentence should be imposed within the scope of the term of punishment aggravated for concurrent crimes in accordance with Article 38(1) of the Criminal Act. Therefore, the judgment of the court below against the defendant cannot be maintained any more.

3. Judgment on the defendant's mental disorder

Although the defendant's mental and physical assertion is still subject to the judgment of this court, according to the records, it is recognized that the defendant received a certain mental health examination due to a stimulative disorder and shock disorder, etc. Meanwhile, considering all circumstances such as the process and method of the crime, the defendant's specific behavior before and after the crime of this case, it cannot be seen that the defendant did not have the ability to discern things or make decisions at the time of each business embezzlement of this case and each larceny of this case, and thus, the defendant's mental and physical disorder cannot be accepted.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the judgment of the court below excluding the rejection part of the application for compensation among the judgment of the court of first instance under Article 364(2) of the Criminal Procedure Act is reversed, and the judgment of the court below excluding the rejection part of the application for compensation among the judgment of the court of first instance is again decided as follows after pleading.

Criminal facts and summary of evidence

The summary of the facts constituting an offense recognized by this court and the evidence thereof is identical to the corresponding column of each judgment of the court below, except for the correction of the "[2013 Highest 935]" in Part 3 of the second judgment as "[2013 Highest 1128]", and therefore, it is acceptable as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 347(1)(Fraud; Imprisonment Selection), 356, 355(1)(Occupational Embezzlement; Imprisonment Selection) and 329(Larceny; Imprisonment Selection); Article 154 Subparag. 2 and 43 of the Road Traffic Act (Unlicensed Driving; Selection of Fine)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act [Exclusion from Violation of the Road Traffic Act (Unlicensed Driving)]

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2 and 3, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

It should be taken into account that the defendant has committed a mistake in depth, but the defendant has several criminal records of the same kind including the criminal records, committed each of the crimes of this case within the same repeated crime period of the same kind, and did not pay damages even though the victims of this case are several victims and have considerable damage (Provided, That some victims do not want the punishment of the defendant), and other various sentencing conditions specified in the records and arguments of this case, including the defendant's age, character and behavior, environment, circumstances after the crime, and circumstances after the crime, shall be considered and sentenced to the same punishment as the order.