The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

The above fine shall not be paid by the defendant.

1. The summary of the grounds for appeal (No. 1 of the original judgment: a fine of one million won, a fine of four million won: a fine of four million won) of the original judgment is excessively unreasonable.

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

The facts charged of the instant case are that the Defendant acquired 2.6 million won from the victim C on January 21, 2009 (hereinafter “instant fraud”), and that the Defendant received 10 million won from the victim C on June 4, 2010 and stored KRW 10 million on June 8, 2010.

Among them, embezzlement of KRW 7.5 million (hereinafter “instant embezzlement”), the lower court, applying Article 39(1) of the Criminal Act, on the ground that the instant crime of fraud, which became final and conclusive on July 29, 2009, constituted concurrent crimes under the latter part of Article 37 of the Criminal Act, determined a punishment against the Defendant by taking into account the following cases: (a) the instant crime of fraud was adjudicated at the same time as the said judgment became final and conclusive: (b) the instant

In the latter part of Article 37 of the Criminal Act, the term “a crime for which judgment to punish with imprisonment without prison labor or heavier punishment has become final and the crime committed before such judgment has become final and conclusive” shall be deemed concurrent crimes. Article 39(1) of the Criminal Act provides that if there is a crime for which judgment has not been rendered among concurrent crimes, the punishment for such crime may be mitigated or remitted in consideration of equity between the crime and the crime for which judgment has not become final

In light of the language, legislative intent, etc. of each of the above provisions, if a crime for which no judgment has yet become final and conclusive cannot be judged concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that the punishment shall not be imposed at the same time in consideration of equity and equality, or that the punishment shall not be mitigated or exempted.

(see, e.g., Supreme Court Decision 2009Do9948, Oct. 27, 2011). According to evidence records, the Defendant was sentenced to imprisonment with prison labor for four months at the Seoul Northern District Court on Nov. 30, 2006 and one year of suspended execution.