The case where there is an error of not specifying the most serious crime in the aggravation of concurrent crimes;

In order to engage in aggravation of concurrent crimes, the ruling that the crimes most serious among several crimes should be specified and the punishment for the prescribed crimes should be concurrent, but the ruling that the crimes of Article 1 which are bound to be combined with several crimes is erroneous, and that the application of the law is erroneous, thereby affecting the judgment.

Articles 37 and 38 of the Criminal Act, Article 361-5 of the Criminal Procedure Act

Supreme Court Decision 4292Ma279 delivered on October 16, 1959 (Kakad 6277 and 6278; Supreme Court Decision 38(2)1250 of the Criminal Act; Supreme Court Decision 51(2)1256 of the Criminal Act); Supreme Court Decision 4292Ma998 delivered on April 27, 1960 (Supreme Court Decision 8-Ma50 Decided April 8, 190, Supreme Court Decision 38(3)1250 of the Criminal Act)

Defendant

Daejeon District Court of the first instance (Seoul High Court Decision 74Gohap10)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

75 days from the detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

The summary of the grounds for appeal by the defendant is as follows: first, since the defendant acquired a legitimate right to each of the main real estate, obtained a letter of guarantee and a written confirmation, and eventually completed the registration of ownership transfer, the defendant was convicted of the defendant although he did not commit each of the principal crimes, the court below found the defendant guilty.

First, in light of the records, the defendant's appeal on mistake of facts is groundless, since the defendant's appeal on mistake of facts can be sufficiently recognized, considering the comprehensive review of various evidence duly adopted by the court below (in particular, the fact that the defendant led to the confession of the crime in the court below) after the examination of evidence by the court below.

그러나 직권으로 보건대 경합범의 경우, 가장 중한 죄에 정한 형으로 처벌하여야 하는 처단상의 일죄에 있어서 무슨 죄에 정한 형으로 처벌하는지를 밝히지 아니하였음은 법률적용을 그릇친 경우라 할 것인바, 원심판결이유에 의하면 본건 판시 제1의 범행은 보증서를 작성하여 받은죄, 확인서를 발급받은 죄 및 위 각 서류를 행사한 죄등 여러범행으로 나누어짐에도 불구하고 막연히 위 판시 제1의 죄로만 표시하여 그 정한 형에 경합범가중을 하였음은 법률적용을 그르친 잘못이 있고, 그 결과 원심판결에는 판결에 영향을 미친다고 할 것이니 원심판결은 피고인의 양형부당의 항소이유에 대한 판단을 보탤 필요없이 부당하므로 파기를 면치못할 것이다.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6), Article 364(2), and Article 361-5(1) of the Criminal Procedure Act, and the members of the company are again decided.

(Criminal Facts and Summary of Evidence)

The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding case in the original judgment, so all of them shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

(Application of Law)

Article 13 (1) 1 of the Act on Special Measures for the Registration of Forest Land Ownership Transfer; Article 13 (1) 3 of the Act on Special Measures for the Registration of Forest Land Ownership; Article 13 (1) 3 of the same Act provides that each of the above documents has been issued with a letter of guarantee and a written confirmation; Article 13 (1) 3 of the same Act provides that one of the above acts is an ordinary concurrent crime under Article 40 of the Criminal Act that constitutes several crimes; Article 40 of the same Act provides that "one of the most severe crimes shall be punished;" Article 39 (1) 5 of the same Act provides that a person shall be sentenced to imprisonment with prison labor for each of the prescribed crimes shall be sentenced to imprisonment with prison labor; and Article 37 (1) of the same Act provides that a person shall be sentenced to imprisonment with prison labor for each of the above crimes for which judgment has not yet been rendered; Article 37 (1) of the same Act provides that a person shall be sentenced to imprisonment with prison labor within the maximum of 7 years under Article 58 (1) of the same Act.

It is so decided as per Disposition.

Judge Lee Ho-ho (Presiding Judge)