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(영문) 인천지방법원 2021.02.05 2020노2915
절도교사등
Text

We reverse the judgment of the court below.

A defendant shall be punished by imprisonment for not less than five months.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) that the court below sentenced to the defendant is too unreasonable (the court below's judgment No. 1: 4 months of imprisonment and the court below's judgment No. 2: 6 months of imprisonment).

2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant.

A. As the case of the lower judgment for which the consolidated trial Defendant lodged an appeal is combined in the first instance trial, the facts constituting the crime of the lower judgment are concurrent crimes under the former part of Article 37 of the Criminal Act, and one sentence should be imposed in accordance with Article 38(1) of the Criminal Act.

Therefore, the judgment of the court below cannot be maintained as it is.

B. According to the records related to the latter part of Article 37 of the Criminal Act, the defendant was sentenced to six years of imprisonment with prison labor on June 12, 2020 at the Incheon District Court Branch Branch of Incheon District Court (2019 Gohap 260 et al.), and the prosecutor and the defendant appealed from the court of appeal on January 13, 2021, and the above appellate judgment became final and conclusive around that time. The above crimes such as robbery, etc. and each of the crimes in the judgment of the court below as above are concurrent crimes under Article 37 of the Criminal Act and are related to the latter part of Article 39 (1) of the Criminal Act, and the punishment for each crime in the judgment of the court below is determined at the same time in consideration of equity and cases where it is decided at the same time pursuant to Article 39 (1) of the Criminal Act. Thus, the judgment of the court below cannot be maintained.

3. If so, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the judgment below is reversed, and it is again decided as follows, without examining the defendant's unfair argument of sentencing, since there are grounds for reversal ex officio as seen above.

【Grounds for the judgment to be used again] Criminal facts and summary of evidence recognized by this court are the facts constituting the crime and summary of evidence of the judgment of the court below, and the defendant was sentenced to imprisonment with prison labor for not less than six years for robbery, etc. in the first part of the judgment of the court below in Incheon District Court Branch of the Incheon District Court (2019 Gohap260) and the prosecutor and the defendant.

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