The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for up to six months and by a fine of up to 30 million won.

The above fine shall be imposed on the defendant.

Summary of Grounds for Appeal

(F) The sentence imposed by the court below (in the case of imprisonment with prison labor, 2 years of suspended execution and fine of 330 million won per day) is too unreasonable. (The imprisonment with prison labor shall be 1.1 million won per day)

We examine ex officio prior to the judgment on the grounds for appeal by the defendant.

The lower court found the Defendant guilty of all the facts charged in the instant case, and sentenced the Defendant to imprisonment with prison labor for a period of two (2) years of suspension of execution and a fine of KRW 330 million (20 million) in June, and sentenced the Defendant to the confinement of the Defendant in the workhouse by applying Article 70(1) and (2) and Article 69(2) of the current Criminal Act in accordance with Article 2(1) of the Addenda of the Criminal Act (Act No. 12575, May 14, 2014).

However, Article 2(1) of the Addenda of the Criminal Act stating that “The amended provisions of Article 70(2) of the Criminal Act shall apply to cases where a public prosecution is instituted for the first time after this Act enters into force,” shall be applied only to acts after the enforcement date of the amended Criminal Act, and Article 70(2) of the Criminal Act shall be applied to the previous Criminal Act (amended by Act No. 12575, May 14, 2014; hereinafter “former Criminal Act”) before the amendment, which was enforced at the time of the criminal act (amended by Act No. 12575, Oct. 26, 2017; hereinafter “former Criminal Act”).

However, since the Defendant’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice) was committed before May 14, 2014 when the amended Criminal Act was enforced, Article 70(2) of the amended Criminal Act cannot be applied to this case, and Article 70 of the former Criminal Act should be applied.

Nevertheless, the court below applied Article 70 (2) of the revised Criminal Code to the detention of the defendant in prison.