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(영문) 수원고등법원 2020.08.19 2020노56
특정범죄가중처벌등에관한법률위반(보복협박등)등
Text

All judgment of the court below shall be reversed.

The defendant shall be sentenced to one year of imprisonment with prison labor for each of the crimes listed in the judgment of the 2019Gohap99.

Reasons

1. Summary of the grounds for appeal (the factual error and inappropriate sentencing)

A. In the statement of grounds of appeal submitted by a defense counsel on June 9, 2020, the "Objection to the Results of the Examination of Evidence in the original trial" included in the statement of grounds of appeal as of June 9, 2020, the evidence that the court below consented should have been rejected, and thus, the objection is raised accordingly.

The declaration of consent to evidence under Article 318 of the Criminal Procedure Act may be withdrawn or withdrawn before the completion of the examination of evidence, but once the examination of evidence is completed, the consent of the court of first instance cannot be revoked or withdrawn after the completion of the examination of evidence. On the other hand, even if the declaration of consent is revoked or withdrawn after the examination of evidence is completed after the examination of evidence, the evidence already acquired before the cancellation or withdrawal shall not be lost (see, e.g., Supreme Court Decision 2003Do3472, Oct. 15, 2004). According to the records, the defendant consented that the evidence submitted by the prosecutor can be admitted as evidence on the third day of the court of second instance, and accordingly the examination of evidence is completed. Thus, even if the declaration of consent to evidence is revoked or withdrawn after the examination of evidence is completed after the examination of evidence, the judgment on the admissibility of evidence cannot be changed.

In relation to the second judgment, although the defendant did not bring the victim's property monitoring and loss, the court below found the defendant guilty of this part of the facts charged, there is an error of law that affected the conclusion of the judgment due to mistake of facts.

B. The sentence of unfair sentencing (the first and second judgment of the court below) sentenced by the court below (one and half years of imprisonment with prison labor of the first and the second judgment of the court of the court below, and six months of imprisonment with prison labor of the second judgment) is excessively unreasonable.

2. We examine ex officio prior to the judgment on the grounds for appeal by the defendant for ex officio judgment.

A. Of the lower judgment of the first instance, the first instance judgment of the 2019Gohap99 case, the second instance judgment of the 2019Gohap99 case, which was decided 2-B.

As to the part of paragraph (1).

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