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(영문) 부산고등법원 (창원) 2017.11.22 2017노212
특정범죄가중처벌등에관한법률위반(절도)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than three years and six months.

One card (No. 2) shall be seized.

Reasons

1. The summary of the grounds for appeal is too unreasonable that the sentence imposed by the court below on the defendant (three years and six months of imprisonment) is too unreasonable.

2. After changing the relevant part of the facts charged at the discretion of the court below prior to the amendment, the victim’s property was habitually stolen over a total of 20 times from December 9, 2016 to February 4, 2017, as shown in the table 1 of the sight of the crime 2017 Gohap9 Case 1 of the judgment below.

Attached Table 1, 201, i.e., the list of crimes committed by the victim, which was habitually stolen on a total of 21 occasions from around December 9, 2016 to February 4, 2017.

The Defendant, as set forth in paragraph 1 (Attached Table 1) (Attachment Table 1) of this case, stolen the H’s bar card, and the Defendant, as set forth in paragraph 1 (Attachment Table 1) (Attachment Table 10) of this case, applied for changes in the indictment to the effect that the Defendant committed a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny 1) by ex officio prior to the judgment on the grounds for appeal 1 of [Attachment Table 1] of the judgment of the court below, 1] attached Table 1 of the crime sight table 1 of the court below, and the prosecutor applied for changes in the indictment to the effect that the Defendant committed a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) in the first instance trial. This court permitted the theft.

As such, the changed scope of judgment and the remaining convictions in the judgment of the court below should be sentenced to a single sentence in the concurrent crimes relationship under the former part of Article 37 of the Criminal Act, and the judgment of the court below cannot be maintained any more.

In addition, the court below sentenced that one copy (BV No. 8) of the Hyundai Card (BV) seized by the defendant will be returned to the victim's name unrefilled, but the return of seized articles can only be sentenced to "where the reason for return to the victim is clear as the stolen articles seized" (Article 333 (1) of the Criminal Procedure Act), and where it is unclear as to whether the seized articles are stolen or not, or where the reason for return to the victim is unclear, it cannot be sentenced to return. Accordingly, according to the records, the above seized articles cannot be sentenced to return.

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