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(영문) 부산고등법원 2018.07.25 2018노43
강도상해
Text

All appeals by the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The Defendants did not have any intention to larceny or robbery with the misunderstanding of facts and legal principles.

On the other hand, there was violence at the credit collection site, and there was an injury due to additional assault against the victim in the course of deviating from the site.

Therefore, this case should be applied not to robbery but to the violation of the Fair Debt Collection Practices Act and the crime of injury.

B. The sentence of the lower court’s unfair sentencing (three years of suspended execution for each two years of imprisonment, and one hundred and twenty hours of community service order) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, the Defendants also asserted the same as the lower court, and the lower court rejected the Defendants’ assertion by providing a detailed statement on the determination thereof.

A thorough examination of the records and the evidence duly adopted and examined by the court below, the judgment of the court below is just and there is no error of law by misunderstanding facts or by misapprehending the legal principles.

The Defendants’ assertion is without merit.

B. As to the unfair argument of sentencing, the sentencing guidelines established by the Sentencing Committee on the basis of Articles 81-2 and 81-6 of the Act on the Organization of Courts on the Criteria of Sentencing (hereinafter “Sentencing guidelines”) are “reasonable, concrete, and objective setting” and “public disclosure” through “procedures prescribed by the Act in order to realize “fair and objective sentencing”. Judges shall respect the selection of the type of punishment and the determination of the sentence (see Articles 81-2 through 81-12 of the Court Organization Act). In a case where the reasons for the sentencing are to be stated in the written judgment following a judgment that deviates from the sentencing guidelines, the court shall state the reasons in a way that it expresses the relevant sentencing in a reasonable and persuasive manner in consideration of the significance, effect, etc. of the sentencing guidelines (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010).

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