On November 15, 201, the Defendant was sentenced to six months of imprisonment with prison labor for an injury at the Daejeon District Court on December 16, 201; on December 16, 2013, the same court was sentenced to a fine of two million won for an injury; on June 20, 2014, the Defendant was sentenced to one year and six months of imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (Habitual Injury) on January 15, 2015; on December 17, 2015, the execution of the sentence became final and conclusive; on October 19, 2016, the Defendant was sentenced to four months of imprisonment with prison labor for a habitual assault at the Daejeon District Court on December 19, 2016, and was under trial at the appellate court.

【Criminal Facts】

The victim non-indicted 2 is the defendant's friendship, and the victim non-indicted 1 is the defendant's sheshesheshes, and the defendant, the victim non-indicted 2, and the victim non-indicted 1 are living together in the Daejeon U.S. (name omitted).

1. Habitual assault against the victim non-indicted 1

A. On December 6, 2016, around 17:10 on December 6, 2016, the Defendant reported and expressed a desire to report a victim who was fright in a room in the Daejeon Pungdong ( Address omitted), and the victim assaulted the victim by walking her her her m, due to his/her out of the house, by driving away from the back of the house.

B. On December 8, 2016, at around 17:00, the Defendant: (a) committed assaulting the victim’s face twice in drinking, with the victim, who is engaged in a water classification work in the Daejeon Pungdong ( Address omitted); (b) “Neash, I will die. I will die. I will die.”

Accordingly, the defendant habitually assaulted the victim.

2. Continuation of violence against the victim Nonindicted 2

The Defendant, at the date and time, at the place specified in Paragraph 1-b, the victim, who is the mother of the Defendant, took the Defendant’s humbbs, and took the humbs to the victim’s right humbs.

1. Each legal statement of Nonindicted 2 and Nonindicted 1

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Each written statement of Nonindicted 2 and Nonindicted 1 and each written statement of Nonindicted 2 and Nonindicted 1 (victim)

1. Investigation report (investigation into a stormer, investigation into the situation at the time of leaving the scene, and family relationship between the suspect and the victim);

1. A report on the occurrence of violence;

1. Previous convictions in judgment: Criminal records and investigation reports (investigation into a written judgment, indictment, and attachment of a written judgment);

1. Habitualness described in paragraph (1) of the holding: The recognition of dampness in light of the records of each crime, the method of crime, the frequency of crimes, and the fact that the same kind of crime has been committed in a planned and organized manner;

[The defendant and his defense counsel asserted each of the assault crimes as of December 8, 2016 under Article 1-b and Article 1-2 of the judgment. Thus, according to the evidence duly admitted and investigated in this court, each of the facts constituting a crime is recognized. The victims have appeared as witness and reversed their statements made to investigation agency to the effect that they did not memory the facts of assault as of December 8, 2016, or did not witness the other victims. However, in light of the unique nature that the defendant and the victims were committed immediately after the victims' statements were made in investigation agency and were in a specific and consistent manner, it is difficult to believe the above statements reversed in the court, in light of the above special nature that the defendant and the victims were in a relationship with their dependent or their lineal blood relatives. Since the defendant appears to have been only committed at the time of the crime of this case, it is difficult to believe the defendant's assertion denying the facts of assault as they are.]

Articles 264 and 260(1) (a) of the Criminal Act, Article 260(2) and (1) (a) of the Criminal Act, Article 260(2) and (1) of the Criminal Act (a point of habitual assault and choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

【Scope of Recommendation】

Violence Crime> Type 6 (Habitual Offense, Cumulative Offense, Special Violence) Reduction Area ( April to December).

[Special Mitigation]

In case of failure to punish (including a serious effort for recovery of damage) or where damage has been restored to a considerable part;

2. Second crime:

【Scope of Recommendation】

Violence Crime> Type 1 (General Violence) > Aggravation (4-1 year)

[Special Mitigation (Aggravated Aggravation)]

Where punishment is not imposed (including serious efforts to recover damage) or considerable damage is recovered, the victim who continues to exist and the same repeated crime (excluding the types of habitual and repeated assault in six categories)

3. The scope of final sentence due to the aggravation of multiple offenses: four months to one year and eight months; and

4. Determination of sentence;

○ favorable circumstances: The defendant reflects the error concerning part of his crime, the victims do not want the punishment against the defendant, and the degree of assault is not much severe.

○ Unfavorable Circumstances: The crime of this case was committed against the same victim again during the period of repeated crime, the victims are old, and the risk of recidivism, etc.

All the above-mentioned circumstances and the defendant's age, occupation, family relation, character and conduct, environment, motive and means of crime, results, etc., the punishment as ordered shall be determined by comprehensively taking account of various sentencing conditions shown in the records.

A. The summary of this part of the facts charged is that the defendant habitually assaulted the victim, who is a lineal ascendant, as stated in paragraph (2) of the facts constituting the crime.

B. In light of the fact that there is a number of criminal records against the defendant as seen earlier, but there is no record of crime against the victim who is a lineal ascendant, and violence against the lineal ascendant is the first crime of this case, the evidence alone cannot be readily concluded that there is a habit of violence against the defendant immediately.

C. Therefore, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime. However, the above facts charged include the facts charged for the remaining assault, so long as it is found guilty of the remaining assault crime within the scope of the same facts charged, this part of the charges shall not be pronounced not guilty

2. The point of habitual violence against the victim non-indicted 1

A. The summary of this part of the facts charged is that the Defendant committed an assault as stated in Paragraph 1 of the facts charged in the judgment, which is a habitual usheshel, and the Defendant was prosecuted for the crime of habitual violence against a lineal ascendant and the crime of blanket violence.

B. According to Article 264 of the Criminal Act, in a case where a person habitually commits a crime of simple assault, violence, special assault, etc., the punishment is aggravated by 1/2 of the punishment stipulated in each of the above crimes. Thus, the crime of habitual assault is not established immediately when a person who has the habit of habitual assault simply assaults his/her lineal ascendant. It is reasonable to deem that the crime of habitual assault is established by taking into account various circumstances, such as the defendant's age, character, occupation, environment, pasture, motive, means, method, and place of the crime, interval with the previous crime, and similarity with the contents of the crime (see Supreme Court Decision 2004Do6176, May 11, 2006, etc.).

In other words, the habitual assault and habitual assault should be judged separately. Therefore, the crime of habitual assault and the crime of habitual assault are separate crimes not all inclusive, and the crime of habitual assault and the crime of habitual assault are separate crimes, and considering these facts charged in this part of the charges, unless the victim is not the lineal ascendant of the defendant, the crime of habitual assault and the crime of habitual assault, which requires the status relationship, cannot be established.

C. Therefore, inasmuch as the facts charged do not constitute a crime, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act because it falls under the case where the facts charged do not constitute a crime, the judgment of innocence shall not be rendered separately.

Judges Kim Jong-Hy