[1] In a case where both punishment of imprisonment and fine are to be imposed concurrently on a single crime, whether punishment of imprisonment can be mitigated only (negative)

[2] The case holding that the judgment of the court below which did not reduce the amount of a fine with respect to a part of the defendant's comprehensive crime of acceptance of bribe in concurrent punishment of a fine under Article 2 (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes is erroneous in the misapprehension of legal principle

[1] Articles 53 and 55(1)3 and 6 of the Criminal Act / [2] Articles 53, 55(1)3 and 6, and 129(1) of the Criminal Act; Article 2(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9169, Dec. 26, 2008); Article 2(1) and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)

[1] Supreme Court Decision 96Do3466 Decided August 26, 1997 (Gong1997Ha, 2979) Supreme Court Decision 2008Do3258 Decided July 10, 2008, Supreme Court Decision 2008Do6551 Decided February 12, 2009

Defendant

Defendant

Attorney Jeong Jong-soo

Daejeon High Court Decision 2010No570 decided February 15, 2011

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the judgment of the court below in light of the evidence adopted by the court of first instance, it is just that the court below found the defendant guilty of this part of the charges that the defendant accepted a bribe equivalent to the same amount on the ground that the court of first instance was aware of the fact that the defendant, among the charges of this case against the defendant, was aware of the fact that he entered into a resale contract of the apartment purchase right in the name of wife in the name of wife, was responsible for a premium equivalent to 70 million won on the part of the non-indicted, and contrary to the allegations in the grounds of appeal,

2. Ex officio determination

In a case where both punishment and a fine are to be imposed concurrently with respect to a single crime, the punishment of imprisonment shall be mitigated only and the punishment of a fine shall not be mitigated (see Supreme Court Decisions 96Do3466, Aug. 26, 1997; 2008Do3258, Jul. 10, 2008, etc.).

According to the statement in the column for applicable provisions of the judgment of the court below, the court below imposed a fine pursuant to Article 2(2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes on the part of the crime received after December 26, 2008 among the crimes of acceptance of bribe, which are a single comprehensive crime, concurrently among the crimes of acceptance of bribe, and did not state Article 55(1)3 of the Criminal Act, which is a provision for discretionary mitigation, and Article 5(1)6 of the Criminal Act, which is a provision for discretionary mitigation of fines, but does not state Article 55(1)6 of the Criminal Act, which is a provision for discretionary mitigation of fines, while examining the reasons for the judgment, there is no basis to recognize that the sentence was mitigated for the fine (the fine of KRW 700 million, which was sentenced by the court below, is limited within the scope of discretionary mitigation, but not discretionary mitigation). The court below is bound to reduce the amount of imprisonment only and not reduce the amount of the fine.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to discretionary mitigation, and it is clear that this affected the conclusion of the judgment, and in this respect, the judgment of the court below cannot be reversed.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)