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(영문) 서울고등법원 2018.12.05 2018노1689
강도치상등
Text

All the judgment below is reversed.

A defendant shall be punished by imprisonment for four years.

No. 1 copy (U) of the seized No. NAC Card (No. 1).

Reasons

1. Summary of grounds for appeal;

A. The punishment of the lower court against the Defendant (as against the lower court’s judgment No. 1 and No. 2) (as against the Defendant: imprisonment with prison labor for 4 years, and imprisonment with prison labor for 2 years) is too unreasonable.

B. The lower court’s sentence against the Defendant against the prosecutor (the lower court’s judgment No. 2) is too unhued and unreasonable.

2. We examine ex officio prior to the determination of the ex officio judgment and the prosecutor’s improper assertion of sentencing.

According to the records, the defendant filed each appeal against the judgment of the court of first and second instance against the judgment of the court of second instance, and the court of second instance decided to consolidate the appeal cases against the judgment of the court of first and second instance against the judgment of the court of second instance.

Each of the crimes in the judgment of the court below Nos. 1 and 2 against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, one sentence should be imposed in accordance with Article 38(1) of the Criminal Act. In this respect, the judgment of the court of first and the judgment of the court of second instance cannot be maintained any more.

3. The judgment of the court below is reversed in its entirety pursuant to Article 364 (2) of the Criminal Procedure Act without examining the error of sentencing by the defendant and the prosecutor, and the judgment below is reversed, and it is again decided as follows through pleading.

[Grounds for a new judgment] The summary of facts constituting an offense and evidence recognized by the court and the summary of the evidence are as follows: (a) the summary of the evidence of the second judgment is identical to the corresponding column of the first and second judgment, except for the addition of “1. Defendant’s oral statement” to the summary of the evidence of the second judgment; and (b) thus, it is acceptable in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article 337 of the Criminal Act applicable to the crime, the choice of punishment (the injury caused by robbery, the choice of imprisonment with prison labor), Article 347(1) of the Criminal Act (the fraud, the choice of imprisonment with prison labor), Article 70(1)4 of the Act on Business Specializing in Credit, and Article 70(1)4 of the Act on Business Specializing in Financial Services (the use of force card, the use of force card), Article 2-A, and Article 2-2 of the judgment of the court of first instance.

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