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(영문) 대전지방법원 2019.10.30 2019노915
특정범죄가중처벌등에관한법률위반(절도)등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for a term of two years and two months.

Reasons

1. Summary of grounds for appeal;

A. Error of facts (as to the part on the 2019 Highest 126th part), the Defendant, at the victim’s house, listens to sound from water and accepts it by entering the boiler room.

The clothes have been placed in the wind with clothes which had been milched, and later there was no intention of theft because there was no intention of theft since there was a thought that the victim will return clothes.

B. At the time of the instant case, the Defendant was in a state of mental disability under the influence of alcohol.

C. The sentence imposed by the lower court on the Defendant (the first instance judgment: imprisonment with prison labor for one year and eight months, and the second instance judgment: imprisonment with prison labor for six months) is too unreasonable.

2. As the first and second judgments of the lower court appealed in the trial, each of the crimes in the first and second judgments against the Defendant became concurrent crimes under the former part of Article 37 of the Criminal Act.

In such cases, in accordance with Article 38 of the Criminal Code, one punishment shall be sentenced simultaneously, so the judgment of the court below 1 and 2 cannot be maintained any more.

However, even if the court below's above reasons for ex officio destruction exist, the defendant's assertion of misunderstanding of facts and mental or physical disorder is still subject to the judgment of this court.

3. The following circumstances acknowledged by the evidence duly adopted and examined by the lower court regarding the assertion of mistake of facts: (i) even if the Defendant’s assertion was based on the Defendant’s assertion, the Defendant entered the victim’s house through the window and boiler room without the victim’s permission, and entered the victim’s house, and she was inside and out of the room without the victim’s permission, and thus, the victim’s understanding on the Defendant’s act is difficult to deem; and (ii) the Defendant got out of the victim’s house in the process of entering the victim’s house, thereby damaging the correction device by using the cell gate; and (iii) opened a door of flab; and (iv) the Defendant entered the victim’s house in order to cut the boiler.

(b).

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