(영문) 전주지방법원 2018.01.19 2017노1454 | 리걸엔진

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Text

Reasons

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 전주지방법원 2018.01.19 2017노1454

사기등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of one year and four months.

An applicant for compensation shall be dismissed.

Reasons

1. The judgment of the court below on the gist of the grounds for appeal (one year and nine months of imprisonment) is too unfied and unreasonable.

2. Ex officio determination

A. The appellate court shall judge the grounds included in the grounds for appeal, but it may decide ex officio on the grounds that have affected the judgment (Article 364(1) and (2) of the Criminal Procedure Act). Meanwhile, the grounds for appeal include “when the amount of punishment is deemed unfair” (Article 361-5 subparag. 15 of the same Act). The grounds for appeal include “when the grounds for deeming that the amount of punishment is unfair” (Article 361-5 subparag. 15 of the same Act). As above, the grounds that affect the judgment are not included in the grounds for appeal, but it does not include any limitation that the appellate court may not determine the sentence more favorable to the sentencing of the first instance.

Therefore, prior to the judgment on the grounds for appeal by the prosecutor that the sentence of the first instance is too unfasible and unfair, the appellate court may ex officio decide whether there exists any reason to acknowledge that the sentencing is unfair in the first instance judgment. In the event of such reason, the first instance judgment is reversed and the first instance judgment may be sentenced to a minor sentence more than the sentencing of the first instance judgment (see Supreme Court Decision 2008Do1092, Dec. 9, 2010). (b) In accordance with the above legal principles, prior to the prosecutor’s judgment on the grounds for appeal, the court below examined ex officio as to the sentencing of the first instance judgment. Each of the crimes of this case is deemed to have driven a motor vehicle more than 190 million won from four victims, and driving the motor vehicle without the driver’s license, the nature and circumstances of the crime and the crime are not good, most of the damage caused by frauds are not recovered, and the necessity of the Defendant’s severe punishment is recognized.

However, on the other hand, the defendant's mistake and reflects it, and the defendant's fraud victim.

참조판례

-대법원 2010. 12. 9. 선고 2008도1092 판결

유사 판례

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-춘천지방법원 2017.08.10 2016노1169

-제주지방법원 2016.07.07 2016노3

-서울북부지방법원 2016.05.26 2015노2033