In the case of imprisonment and penalty, whether the sentence of imprisonment only shall be mitigated;

In cases where the punishment of imprisonment and a fine are to be imposed concurrently, the punishment of imprisonment shall be mitigated only for the punishment of imprisonment, except as otherwise provided, and the fine shall not be imposed.

Article 53 of the Criminal Act

【Court Decision 77Do1827 delivered on July 26, 1977 (Article 53(10)127 of the Criminal Act)

Defendant

Defendant

Daegu District Court Decision 84Gohap53 decided May 1, 200

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a short term of one year and six months, a long term of two years and a fine of two hundred thousand won.

The number of detention days prior to the declaration of the original judgment shall be included in the above imprisonment.

The seized neck (No. 12) shall be confiscated, and the forged part of five copies (No. 1, 3, 9, 10, 11) of the same household check shall be discarded.

5 copies of the above household check and two copies of the household check (No. 2 and 4) confiscated shall be returned to the victim.

The provisional payment of the amount equivalent to the above fine shall be ordered.

The summary of the grounds for appeal by the defendant and his defense counsel is as follows: first, the defendant was guilty of the facts charged in this case, which affected the conclusion of the judgment by misunderstanding the facts, and second, in light of the circumstances leading to the defendant to the crime in this case, the circumstances leading to the crime in this case, the environment at sea, and the current family situation, etc., the punishment of imprisonment with prison labor for a short term of one year and six months, a long term of two years and a fine of 300,000 won, which the court below sentenced against the defendant, is too unreasonable.

Therefore, if the evidence duly admitted by the court below is compared to the records, it can be sufficiently recognized that the criminal facts of this case of the defendant, which the court below decided, and there are no errors as pointed out in the process of fact-finding by the court below, and the above grounds for appeal claiming mistake of facts cannot be accepted.

However, prior to examining the remaining grounds for appeal by the defendant and his defense counsel, the court below imposed a discretionary mitigation on the defendant as to the punishment of imprisonment and the fine pursuant to Article 5 (2) and (6) of the Regulation of Illegal Check Act, without discretionary mitigation. Thus, in the case where imprisonment and the fine are to be imposed concurrently as in this case, unless there are any special provisions, the court below shall reduce the amount of imprisonment only and shall not be sentenced to a fine. Thus, the court below shall not be held to have affected the judgment by misunderstanding the legal principles on discretionary mitigation, and the judgment of the court below shall not be maintained in this point. Thus, since the decision of the court below is not necessary to determine the remaining grounds for appeal by the defendant and his defense counsel, the judgment of the court below shall be reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act and it shall be decided again as follows.

Since the criminal facts of the defendant recognized as a party member and the summary of the evidence are the same as that of the judgment of the court below, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 330, Article 329 of the Criminal Act; Article 33 of the so-called "Act on the Aggravated Punishment, etc. of Specific Crimes; Article 5 of the Criminal Act; Article 217 of the so-called "Act on the Control of Illegal Check;" Article 217 of the Criminal Act; Article 347 (1) of the same Act; Article 5 of the same Act provides that "the so-called "one-called" of the above-mentioned crimes shall be deemed to be crimes under Article 5-4 (1) of the Criminal Act; Article 5 of the same Act provides that "the above-called crime shall be punishable by imprisonment with prison labor for not more than 10 times; Article 30 of the same Act provides that "the above-mentioned crime shall be punishable by a fine not exceeding 1; Article 38 (1) 2 and Article 50 of the same Act provides that "the defendant shall be punished by a fine not exceeding 5-year imprisonment with prison labor;

It is so decided as per Disposition for the above reasons.

Judges Choi Han-ro (Presiding Judge)