(영문) 서울고등법원 2018.04.20 2017노3676 | 리걸엔진

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(영문) 서울고등법원 2018.04.20 2017노3676

특정경제범죄가중처벌등에관한법률위반(사기)등

Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for two years.

Reasons

1. Of the judgment of the court of first instance, the court below found the Defendant guilty of the portion of KRW 3.5 million out of the total of KRW 200,000,000,000,000 as stated in [Attachment 8] Nos. 9, 13, and 16 of the List of Crimes Nos. 8 as indicated in the facts charged, and found the Defendant guilty of the remainder of the facts charged. The Defendant appealed on the grounds of unfair sentencing, and the prosecutor appealed on the grounds of misconception of the facts as to the sum of KRW 200,00,000,000,000,000 in [Attachment 1] No. 9, 13, and 16 of the list

In such a case, the portion of innocence on the part of KRW 3.5 million out of the 2.5 million in the annexed list No. 8 of the annexed list of crimes, as stated in the principle of indivisible appeal, is also judged in the court of first instance along with the convicted part. However, since the aforementioned part of innocence was already exempted from the object of attack and defense between the parties, it cannot be judged again by this court (see Supreme Court Decisions 2004Do5014, Oct. 28, 2004; 2009Do12934, Jan. 14, 2010, etc.). Accordingly, with respect to the part of innocence on the above ground, the conclusion of the first judgment is followed, and this court is not judged separately.

2. Summary of reasons for appeal;

A. The sentence of the lower court (the first instance court: 2 years of imprisonment, and the second instance court: 1 year of imprisonment) is too unreasonable.

B. Prosecutor 1) The lower court acquitted the Defendant of this part of the facts charged even though the Defendant was aware of the fact-finding (the part as indicated in [Attachment 9, 13, and 16], in light of the fact that the Defendant returned each of this part of the loans, but did not pay any profit or interest on KRW 200 million which was the initial promise, based on the fact that the Defendant was aware of the fact-finding (the part as indicated in [Attachment 9, 13, and 16].

2) Improper sentencing (as to the judgment of the court of first instance) (as to the judgment of the court of first instance), the sentence of the court of first instance against the defendant is too unhued and unfair

3. Determination

(a) ex officio;

참조판례

-대법원 2004. 10. 28. 선고 2004도5014 판결

-대법원 2010. 1. 14. 선고 2009도12934 판결

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