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(영문) 대법원 2019.11.28 2019도12572
공직선거법위반
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. According to the records as to Defendant A’s grounds of appeal, Defendant A appealed against the judgment of the first instance, and only asserted unfair sentencing as the grounds of appeal.

In such a case, the argument that the court below erred by misunderstanding of facts, misunderstanding of legal principles, procedural defect excluding the defendant's right to cross-examination and the right to participate in the examination, and the application of unconstitutional legal provisions

Defendant

A asserts that there exists a procedural defect in the lower court’s determination of sentencing that excludes the defendant’s right to cross-examination and the right to participate in the examination, and that there was an error of maintaining the lower limit of the scope of sentencing in the first instance court’s determination that distorted the lower limit of the scope of sentencing because of not reflecting the favorable sentencing factors. However, even in light of the record,

Even as to the assertion of unfair sentencing, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed. Thus, in this case where Defendant A rendered a minor sentence against Defendant A, the argument that the sentence is too unreasonable is not legitimate grounds for appeal.

2. As to the Defendant B’s grounds of appeal, the lower court convicted Defendant B of the facts charged on the grounds as indicated in its reasoning.

The judgment below

Examining the reasoning in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “prior election campaign” under the Public Official Election Act.

Defendant

B has maintained the sentencing of the first instance court against the purport of the Act on Citizen Participation in Criminal Trials by prescribing a sentence differently from the majority of jurors in the sentencing judgment of the lower court.

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