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(영문) 서울고등법원 2020.06.26 2019노2797
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

The judgment of the court of first instance (excluding the dismissal of an application for compensation order) and the judgment of the court of second instance shall be reversed.

Defendant shall be punished by imprisonment.

Reasons

1. The first instance court dismissed all the application for compensation by the applicant for compensation, and the applicant for compensation cannot file an objection against the judgment dismissing the application for compensation pursuant to Article 32(4) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and the same application for compensation cannot be filed again. The decision of dismissal becomes final and conclusive immediately and conclusive and is not subject to appeal.

Therefore, the part which rejected the application for compensation among the judgment of the court of first instance is excluded from the scope of adjudication of this court.

2. Summary of grounds for appeal;

A. Defendant: The Defendant explicitly withdraws the assertion of mistake or misapprehension of legal principles as to the judgment of the first instance on the fourth trial of unfair sentencing.

Each punishment sentenced by the court of first and second trials (the first instance court's imprisonment: the second instance court's imprisonment with prison labor; the second instance court's imprisonment with prison labor) is too unreasonable.

B. Prosecutor: The above sentence imposed by the court below of the first instance on the defendant is too uneasible and unfair.

3. We examine ex officio the grounds for appeal prior to the judgment ex officio.

In the court of first instance, the prosecutor filed an application for the modification of a bill of amendment with the content of adding the criminal facts in relation to the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission, and as such, the subject of the judgment was changed by this court, the judgment of the court of first instance on the above part, the inclusive crime, and all the criminal facts in relation to the substantive concurrent crimes became no longer available

In addition, the first and second judgments against the defendant were sentenced respectively, and the defendant filed each appeal against the judgment of the court of first instance against the judgment of the court of first instance, and this court decided to jointly examine the above two appeals cases.

The first and second judgment against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act, and thus a single sentence should be imposed pursuant to Article 38(1) of the Criminal Act. Thus, the judgment of the court below is without merit.

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