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(영문) 대법원 2017.02.21 2016도20793
아동ㆍ청소년의성보호에관한법률위반(알선영업행위등)
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendant A, the argument that the lower court erred by misapprehending the legal doctrine on mental and physical weakness, emergency escape, and self-help in determining the sentencing constitutes an unfair argument for sentencing.

Therefore, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for more than ten years has been imposed, an appeal is permitted for the wrongful grounds for sentencing. As such, the argument that the punishment of Defendant A is improper because it is too unreasonable in this case where a more minor sentence has been imposed against Defendant A cannot be a legitimate ground for appeal.

2. As to the grounds for appeal by Defendant C, even if Defendant C voluntarily surrenders to the police by reason of voluntary mitigation of punishment, it cannot be deemed unlawful that Defendant C did not reduce the number of self-denunciation. Therefore, we cannot accept the allegation that the lower court erred by misapprehending the facts concerning mitigation of self-denunciation or by misapprehending the legal doctrine.

The court below changed the sentencing date ex officio after the closing of pleadings, since the issue of whether to change the sentencing date notified constitutes the court's discretion.

Even if there is no error of infringement of the defendant's right to a fair trial, as alleged in the grounds of appeal.

In addition, unless otherwise provided, the term "juvenile" under Article 60 (2) of the Juvenile Act refers to "juvenile" under Article 2 of the Juvenile Act, and the term "juvenile" under Article 2 of the Juvenile Act refers to a person under 19 years of age.

Here, a person under the age of 19 is the condition of the trial, and must continue to exist not only when the crime is committed but also until the trial is conducted.

Therefore, whether a case constitutes “juvenile” subject to Article 60(2) of the Juvenile Act ought to be determined at the time of adjudication, that is, when a trial is rendered (see, e.g., Supreme Court Decision 2016Do7112, Jul. 27, 2016). Examining the foregoing legal doctrine in light of records, the first instance court is Defendant C.

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