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(영문) 대전지방법원 2017.06.14 2017노801
폭력행위등처벌에관한법률위반(공동폭행)
Text

The defendant's appeal is dismissed.

Reasons

1. The sentence (six months of imprisonment) imposed by the court below on the summary of the grounds for appeal is unreasonable.

2. It is desirable to refrain from rendering a sentence that does not change the conditions of sentencing compared to the first instance court, and where the first instance court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect it. Although the first instance court’s sentencing falls within the reasonable scope of discretion, it is reasonable to refrain from rendering a sentence that does not differ from the first instance court’s judgment on the sole ground of the difference between the appellate court’s opinion and the lower court’s opinion (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). In light of the foregoing legal doctrine, the lower court determined a punishment within a reasonable scope, taking into account the overall circumstances regarding the Defendant’s sentencing, and the lower court did not change the conditions of sentencing, as there is no reason to newly consider in the first instance court’s trial, and thus, it is reasonable to respect the sentencing of the lower court without any change in the conditions of sentencing.

Therefore, the defendant's argument of sentencing cannot be accepted.

3. As such, the Defendant’s appeal is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition (Article 2(2)1 of the Punishment of Violences, etc. Act, and Article 260(1) of the Criminal Act, “Article 2(2)1 of the Punishment of Violences, etc. Act, and Article 260(1) of the Criminal Act,” in the application of the law of the lower judgment, is obvious that the Defendant’s appeal is a clerical error under Article 2(2) and (1)1 of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); and therefore, Article 260(1) of the Criminal Procedure Act is corrected ex officio pursuant to Article 25(1) of the Rules on Criminal Procedure.

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