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대구지방법원 2019.06.13 2019노1263

사기등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Sexual assault, 40 hours against the defendant.

Reasons

1. The summary of the grounds for appeal (one year of imprisonment and 40 hours of order to complete a sexual assault treatment program) declared by the court below is too unreasonable.

2. According to the records of ex officio determination, ① the lower court served a writ of summons by public notice pursuant to Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings and served a trial under the absence of the Defendant, thereby sentenced him to one year of imprisonment or her to complete a sexual assault treatment program 40 hours, ② the Defendant was unable to appear in the trial proceedings due to any cause not attributable to him/her, and requested for recovery of his/her right of appeal as he/she did not file an appeal within the appeal period, ③

Since the Defendant was unable to attend the trial in the trial due to a cause not attributable to the Defendant, there was a ground for requesting a retrial under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which constitutes “when there is a ground for requesting a retrial,” which is the ground for appeal under Article 361-

(see Supreme Court Decision 2015Do8243, Nov. 26, 2015). Accordingly, this Court shall proceed with a new litigation proceeding and render a new judgment according to the result of a new trial, and thus, the lower judgment cannot be maintained as it is.

3. The judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds that the judgment of the court below is reversed ex officio.

[D. In addition, “1. Defendant’s oral statement” is the same as the corresponding column of the judgment of the court below, except where “1. Defendant’s oral statement” is added to the summary of the evidence of criminal facts and evidence.

Application of Statutes

1. Article 347(1) of the Criminal Act and Article 298 of the Criminal Act concerning the applicable law and the choice of punishment for the crime (Fraud, choice of imprisonment with prison labor)

1. Article 35 of the Criminal Act among repeated crimes;

1. Article 37 of the Criminal Code among concurrent crimes.