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(영문) 대구지방법원 2014.11.27 2014노3455
폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)등
Text

The judgment of the court below is reversed.

As to the crimes of Nos. 1 and 2 in the judgment of the defendant, the crimes of No. 3 through 5 in the judgment of the defendant are two months.

Reasons

1. In light of the fact that the defendant's summary of the grounds for appeal is against the defendant, the punishment of the court below (one year of imprisonment with prison labor for the crimes No. 1 and No. 2 in the market) is too unreasonable.

2. On September 7, 2011, the Defendant was released on May 25, 2012 and the remaining term of imprisonment was expired on July 6, 2012, on the grounds that he/she was sentenced to four months of imprisonment for fraud against the victim N, fraud against the victimO, and violation of the Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act (Tgu District Court 201No473) and sentenced to six months of imprisonment for a violation of the Act on Real Estate Agent’s Business and Report of Real Estate Transactions.

Meanwhile, on November 11, 2010, the Defendant committed the crime under paragraphs (1) and (2) of the crime as indicated in the holding, and committed the crime under paragraph (3) of the criminal facts as indicated in the holding on June 20, 2012. On August 12, 2012, and April 22, 2013, the crime under paragraph (5) of the said judgment was committed on November 1, 2012; and on April 25, 2013, the crime under paragraph (5) of the said judgment was committed on October 1, 2013.

Article 35(1) of the Criminal Act provides, “A person who was sentenced to imprisonment without prison labor or a heavier punishment and commits a crime corresponding to imprisonment without prison labor or a heavier punishment within three years after the execution thereof is completed or exempted shall be punished as a repeated crime.”

The crime of this case committed under Articles 1 through 3 of the Criminal Act is committed before the execution of punishment is completed, and thus does not constitute a repeated crime (the crime under paragraph (3) of the Criminal Act was committed during the period of parole, and this does not constitute an offense after the execution of punishment is completed, and thus, a repeated crime cannot be aggravated). However, the lower court erred by misapprehending the legal doctrine on repeated crime by deeming the crime of this case as also constitutes a repeated crime under Articles 1 through 35 of the Criminal Act, thereby affecting the conclusion of the judgment.

In this respect, the judgment of the court below is no longer maintained.

3. Accordingly, the judgment of the court below does not need to judge the defendant's assertion of unfair sentencing, on the ground that the above reasons for reversal are grounds for ex officio.

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