In the case of imprisonment with prison labor or a fine, whether only imprisonment with prison labor is mitigated, and whether a fine is not mitigated.

In case where both imprisonment and fine are to be imposed concurrently on a crime committed, the punishment of imprisonment shall be mitigated only with respect to the punishment of imprisonment, unless there is a special provision, and the fine shall not be imposed.

Article 53 of the Criminal Act

Supreme Court Decision 76Do2012 Decided September 14, 1976 (Supreme Court Decision 11408, Supreme Court Decision 243Da1258 Decided September 14, 1976)

Defendant

Defendant and Prosecutor

Seoul District Court Incheon District Court (76 High Court Decision 23)

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment with prison labor of one year and six months and fine of two hundred thousand won.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 1,000 into one day.

One hundred days of detention days before the sentence of the original judgment shall be included in the above imprisonment.

However, the execution of the above imprisonment shall be suspended for three years from the date of the final decision.

Seized red powder 75g of 75 grams (Evidence 1) color mixtures (Evidence 2) and straw mixtures 7.5 kilograms (Evidence 3) color 450 kilograms (Evidence 4) from the defendant shall be confiscated.

피고인의 변호인의 항소이유의 요지는 첫째, 피고인은 본건 고추가루가 피고인소유가 아니고 또 인체에 해가 안되는 줄 알고 고추가루를 빻아주었을 뿐인데 원심이 피고인을 유죄로 인정하였으니 원심판결에는 판결에 영향을 미칠 사실을 오인한 위법이 있다는 것이고 둘째, 원심이 피고인에게 선고한 형의 양정이 너무 무거워서 부당하다는 것이고 검사의 항소이유의 요지는 원심이 피고인에게 선고한 형의 양정이 오히려 가벼워서 부당하다는 것이다. 그러므로 먼저 피고인의 변호인의 항소이유 첫째점에 대하여 살펴보건대, 원심이 적법하게 증거조사를 마쳐 채택한 여러 증거들(특히 피고인이 원심공판정에서 범행을 자백한 점)을 기록에 비치어 종합검토하여 보면, 원심이 판시한 피고인의 본건 범죄사실을 인정할 수 있으므로 이점 사실오인에 관한 항소이유는 받아들일 수 없다.

Then, prior to rendering a judgment on the argument of unfair sentencing by the appellant, the court below erred by discretionary mitigation of imprisonment only with prison labor in reducing the sentence against the defendant and by not reducing the concurrent punishment, which affected the conclusion of the judgment. In this regard, the judgment of the court below is not reversed without the need to make a judgment on the argument of unfair sentencing by the appellant.

Therefore, the judgment of the court below is reversed in accordance with Articles 364 (2) and 364 (6) of the Criminal Procedure Act, and a member is again decided.

(Criminal Facts and Summary of Evidence)

Since the criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

(Application of Acts and subordinate statutes)

The so-called "the judgment of the defendant" is that there are reasonable grounds for considering the circumstances of the defendant as falling under Article 2 (1) 2 of the Act on Special Measures for the Control of Public Health Crimes, Article 23 (1) of the Food Sanitation Act, Article 53 (1) 3 and Article 55 (1) 6 of the Criminal Act, so that the defendant shall be punished by imprisonment with prison labor for a period of one year and six months and a fine of two million won, and if the defendant does not pay the above fine under Article 170 of the Criminal Act, he shall be punished by imprisonment with prison labor for a period of converting 1,000 won into one day, and if the defendant fails to pay the fine under Article 170 of the Criminal Act, he shall be confined to the above imprisonment with prison labor for a period of 110 days from the number of detention days before the sentence of the judgment of the court below under Article 57 of the Criminal Act, and since the defendant is clearly divided in depth after the execution of the above imprisonment for three years from the day when the judgment became final by Article 62 of the Criminal Act.

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

Judges Kim Sang-won (Presiding Judge)