(영문) 인천지방법원 2016.01.14 2015노4459 | 리걸엔진

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 인천지방법원 2016.01.14 2015노4459

사기등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two months.

Reasons

1. Summary of grounds for appeal;

A. The court below found the Defendant guilty on the charge of fraud, since the Defendant was unaware of the fact that he did not mean the Defendant as the attorney-at-law, and H knew that he was not an attorney-at-law, and although the Defendant did not deceiving H and I, the court below found the Defendant guilty. Thus, the court below erred by misapprehending the legal principles.

B. The sentence sentenced by the lower court to the Defendant (two months of imprisonment) is too unreasonable.

2. Determination

A. Before the judgment on the grounds for ex officio appeal, the Defendant was sentenced to six months of imprisonment with prison labor for occupational embezzlement at the Incheon District Court on July 23, 2015, and the Defendant appealed, but the appeal was dismissed, and the appeal was dismissed on December 10, 2015, but the above judgment became final and conclusive. The above crime for which the judgment became final and conclusive and the crime committed by the lower court were concurrent crimes after Article 39(1) of the Criminal Act in relation to a group of concurrent crimes after Article 37 of the Criminal Act, and considering the case at the same time under Article 39(1) of the Criminal Act and the case at which the sentence is mitigated or exempted. As such, the lower court is no longer capable of maintaining the judgment. Moreover, the crime of receiving money from the victims by deceiving H and I among the charged facts of this case and dealing with legal counseling and preparation of legal documents at the same time was all established, and the crime of violating the Criminal Act and the crime of fraud under Article 40 of the Criminal Act was no longer applied even if the judgment below did not exist.

However, notwithstanding the above reasons for reversal of authority, the defendant's assertion of mistake of facts is still subject to the judgment of this court, and we will examine below.

B. The following circumstances are acknowledged based on the evidence duly adopted and examined by the lower court regarding the Defendant’s assertion of mistake of facts.

참조조문

-형법 제39조 제1항

-형법 제40조

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