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(영문) 서울고등법원 2020.05.21 2020노282
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

The judgment below

The remainder, excluding the rejection of an application for compensation order, shall be reversed.

Defendant shall be sentenced to six years of imprisonment.

Reasons

1. The lower court rejected all applications for compensation order D, B, and C filed by the lower court. If the application for compensation order was rejected, the applicant was immediately dismissed without raising an objection, and the decision of rejection becomes final and conclusive, and cannot apply again for the same compensation order without being transferred to the appellate court (see Article 32(4) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Etc.). The portion of the lower court’s rejection of applications for compensation order at the lower court is excluded from those subject to adjudication by this court (see, e.g., Supreme Court Decision 2016Do20745, May 30, 2017).

3. Judgment on the grounds for appeal by the defendant ex officio shall be examined ex officio.

In the first instance trial, the Prosecutor applied for the amendment of the indictment to the effect that “In February 12, 2019,” the part of the 11th judgment of the lower court, “as of February 12, 2019,” among the facts charged in the instant case, was changed by this court’s permission.

However, since the lower court, which is the revised facts charged, deemed the above fraud and the remaining facts charged as concurrent crimes under the former part of Article 37 of the Criminal Act, and sentenced a single punishment, the remaining parts of the lower judgment, except the dismissed portion of the application for compensation order, cannot be maintained any more

4. In conclusion, the remaining parts of the judgment below, except the rejection of the application for compensation order, are reversed, and the remaining parts of the judgment below, except the rejection of the application for compensation order, are reversed under Article 364(2) of the Criminal Procedure Act without examining the Defendant’s assertion of unfair sentencing, and the following is again decided after pleading.

【Grounds for the judgment of multiple court: The remainder other than the dismissed part of the court below's rejection of an application for compensation order】 Criminal facts and summary of evidence recognized by this court; and summary of evidence of the facts constituting the crime and the summary of evidence thereof, as stated in Part 14 of the court below's judgment.

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