The judgment of the court below is reversed.

Defendant shall be punished by a fine of one million won.

The above fine shall not be paid by the defendant.

1. The reasoning of the appeal by the lower court (one million won in penalty) is too unreasonable.

2. We examine ex officio the grounds for appeal prior to the judgment.

"A crime for which judgment to face with imprisonment without prison labor or heavier punishment has become final and a crime committed before such judgment has become final and conclusive" shall constitute concurrent crimes prescribed in the latter part of Article 37 of the Criminal Act. In such cases, a punishment shall be imposed in consideration of equity in cases where a crime among concurrent crimes has become final and conclusive under Article 39 (1) of the Criminal Act and a crime for which judgment has not become final and conclusive

According to the records, on July 14, 2016, the Defendant was sentenced to five years of imprisonment by the Seoul Eastern District Court due to a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape Similar to Residence) and the judgment became final and conclusive on November 16, 2016.

Therefore, the judgment of the court below that did not sentence the instant crime in consideration of equity and the case of concurrent judgment with regard to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape Similar to Residence) which became final and conclusive, could no longer be maintained.

3. In conclusion, the court below's decision is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's unfair argument of sentencing, and it is again decided as follows.

Criminal facts

The summary of the facts charged and the summary of the evidence admitted by the court are as follows: “The defendant was sentenced to five years of imprisonment by the Seoul Eastern District Court on July 14, 2016 due to a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape similar to Residence) and the judgment became final and conclusive on November 16, 2016.

“1. A previous conviction in the judgment of the court below” is the same as the corresponding column of the judgment of the court below, except for the addition of “1. The Defendant’s oral statement” to the summary of the evidence, and thus, it is acceptable in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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