(영문) 수원지방법원 2012.11.08 2012노4073 | 리걸엔진

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(영문) 수원지방법원 2012.11.08 2012노4073

특정범죄가중처벌등에관한법률위반(절도)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a maximum term of two years and a short term of one year and six months.

Reasons

1. The summary of the grounds for appeal (e.g., both types of punishment) of the lower court against the Defendant is too unreasonable, taking into account the following circumstances: (a) the Defendant is a juvenile; (b) the Defendant was able to repent of the mistake while recognizing the instant crime; and (c) the Defendant was committing the instant crime due to difficulties in living while the Defendant was running away from home.

2. Before the judgment on the grounds for appeal by the defendant's ex officio, the court below sentenced the defendant to return subparagraph 7 of No. 438 of No. 438 of the Suwon District Prosecutors' Office, which was seized, to the victim C, and to the victim's name in favor of the victim's name in 2012. However, the return of seized articles can only be sentenced to "where the reason for return to the victim is apparent" (Article 333(1) of the Criminal Procedure Act). Where it is unclear whether it is stolen or not, or the reason for return to the victim is unclear, it cannot be sentenced to return.

Therefore, according to the records, since the above seized articles are not related to the facts charged of this case, it is not clear whether they are stolen, and as long as the crime is not prosecuted, they cannot be viewed as cases where reasons for returning the above seized articles to the above victims are evident.

Nevertheless, the court below held that the above confiscated articles constituted the requirements for return under Article 333 (1) of the Criminal Procedure Act, and sentenced the return of the victim. Thus, the court below erred by misapprehending the legal principles on the return of the victim, which affected the conclusion of the judgment.

3. If so, the judgment of the court below is reversed under Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows through pleading.

Criminal facts

this Court recognizes the substance of the evidence and the summary thereof.

참조조문

-형사소송법 제333조 제1항

-형사소송법 제364조 제2항

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