(영문) 대법원 2018.1.25.선고 2017도18621 판결

According to the records, the defendant appealed against the guilty portion of the judgment of the court of first instance and amounts as grounds for appeal.

It can be known that only the punishment is unfair. In such a case, the lower court erred by mistake of facts.

C. The argument that there is an error in the investigation procedure cannot be a legitimate ground for appeal.

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, death penalty, imprisonment with prison labor for life or for not less than ten years.

An appeal based on unfair sentencing is allowed only on a case on which a credit cooperative is declared, and thus the defendant is the defendant.

In this case where a minor sentence is pronounced, the argument that the punishment is too unreasonable is too unreasonable.

No legitimate ground of appeal may be a ground of appeal.

2. The decision shall be made ex officio;

"Any crime for which judgment to be sentenced to imprisonment without prison labor or heavier punishment has become final and conclusive and any crime committed before such judgment has become final

Article 37 (Concurrent Crimes prescribed in the latter part of Article 37 shall be applicable to such concurrent Crimes, and such concurrent crimes shall be governed by Article 39 (1)

An enhancement of equity in cases where a judgment is rendered at the same time with a crime which has not been adjudicated among the crimes and a crime for which judgment has become final

penalty shall be imposed for the crime committed by commission.

On November 2, 2016, the Act on the Control of Narcotics by the Defendant at the Ulsan District Court on November 2, 2016

A person who has been sentenced to a suspended sentence of ten months for committing a violation of the rate and is pending in the appellate trial trial after being sentenced to a suspended sentence;

The records are recorded, and the indictment for this, the judgment of the first instance court, the detailed statement of the progress of the trial, etc. are written.

Defendant is bound to file a judgment dismissing an appeal in the foregoing case at the Ulsan District Court on May 26, 2017.

Although having filed an appeal with the Supreme Court on September 5, 2017, the judgment was final and conclusive on September 5, 2017.

However, among the facts charged in the instant case, the point of violation of the Narcotics Control Act and narcotics

The defendant's violation of the Control Act (hereinafter referred to as "each of the offenses in this case") is the case.

11. Each offense committed around 26.26. and around 1.201. The lower court’s sentence is imprisonment without prison labor or heavier punishment.

The judgment of conviction against the above violation of the Act on the Control of Narcotics, Etc. is final and conclusive.

In order to examine whether each of the instant offenses was committed, the violation of the Act on the Control of Narcotics, Etc. (in the future)

(ix)if the judgment of conviction against the offence becomes final and conclusive, each of the instant crimes and the said narcotics as the judgment has become final and conclusive;

The crime of violation of the law on the management of Chapter 37 constitutes concurrent crimes under the latter part of Article 37 of the Criminal Act.

In determining punishment for each of the crimes of this case, each of the crimes of this case shall be subject to Article 39(1) of the Criminal Act.

Determination of punishment in consideration of the equality in cases where a crime and a crime for which the above judgment becomes final and conclusive at the same time

must be determined (see, e.g., Supreme Court Decision 2008Do209, Oct. 10, 2008).

Nevertheless, the court below did not proceed with such measures. Thus, the court below's judgment is justified.

In the latter part of Article 37 and Article 39 (1) of the Act, the court shall either misapprehending the legal doctrine or failing to exhaust all necessary deliberations.

There is an error of law affecting the judgment.

3. Conclusion

Therefore, the guilty portion of the judgment of the court below shall be reversed, and this part of the case shall be tried and judged again.

The case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.