(영문) 부산지방법원 2015. 7. 16. 선고 2014노3398,2015노121(병합),2015노1144(병합) 판결[폭력행위등처벌에관한법률위반(상습공갈)(인정된죄명상습공갈)·주민등록법위반·전자금융거래법위반·폭력행위등처벌에관한법률위반(집단·흉기등상해)·폭력행위등처벌에관한법률위반(집단·흉기등감금)·폭력행위등처벌에관한법률위반(집단·흉기등폭행)·폭력행위등처벌에관한법률위반(공동폭행)·강요·점유이탈물횡령·위증교사·사기·자동차관리법위반][미간행]
Defendant
Defendant
Dozboard Line, Schion decoration, Sil Dong, Na, Hunting (prosecution), Park Young-young (Public trial)
Law Firm Habi (Attorney Lee Jae-ho)
1. Busan District Court Decision 2014Da154, 2014Ma45 (Consolidated) Decided September 19, 2014; 2. Busan District Court Decision 2014Da7421 decided December 17, 2014; 3. Busan District Court Decision 2014Da9857, 2015 Godan31 (Consolidated) decided April 9, 2015 (Consolidated) Decided December 17, 2014
All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for three years.
A seizure shall be confiscated.
1. Summary of grounds for appeal;
A. Although the defendant merely asked Nonindicted 1 et al. to make a true statement, and did not interfere with the perjury, the judgment of the court below of the second instance is erroneous in misconception of facts that found him guilty of this part of the facts charged.
B. Each sentence of the lower court (the first instance judgment: the imprisonment of 3 years, the imprisonment of 8 months, and the imprisonment of 3 months: the imprisonment of 4 months) is too unreasonable.
2. Determination
A. Ex officio determination
The defendant's grounds for appeal are examined ex officio prior to the judgment.
This Court held that three appeals cases against the defendant are consolidated and tried, and since the crimes in the decision of each court below are concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment shall be sentenced pursuant to Article 38(1) of the Criminal Act, the judgment of the court below shall no longer be maintained.
B. Judgment on mistake of fact
However, the defendant's above assertion of mistake is still subject to the judgment of this court.
Following the evidence duly adopted and examined by the court below, ① in this case, the court found the defendant guilty on the basis of evidence such as the defendant’s legal statement at the court of first instance and the police statement as to the crime as set forth in subparagraphs 1 through 4 of the judgment below in this case. ② Nevertheless, Co-defendant 1, 2, and 3 in the court of second instance stated to the effect that there is no assault or confinement against the defendant, unlike the facts found guilty after attending and taking an oath at the court of first instance, unlike the above facts charged. ③ After being prosecuted on suspicion of the above evidence, Non-Indicted 1, 2, and 3 led the defendant to make a false statement against the memory at the court of second instance, and it became final after being sentenced to a fine of one million won due to the above facts charged, ④ Non-Indicted 21 in the court of second instance prepared a false statement to the defendant and made a false statement to the court of second instance to the effect that the defendant did not have made a false statement to the court of first instance, and ⑤ if the defendant made a false statement to the victim's witness or a false statement.
Therefore, the defendant's assertion of mistake is without merit.
3. Conclusion
Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment of the court below is reversed and it is again decided as follows.
The summary of the facts constituting an offense and evidence recognized by this court is identical to each corresponding part of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.
1. Article applicable to criminal facts;
Articles 351 and 350 of the Criminal Act (Along with Habitual Assaults), Article 37 subparag. 10 of the Resident Registration Act, Article 30 of the Criminal Act, Article 49(4)1 of the Electronic Financial Transactions Act, Article 6(3)1 of the Punishment of Violences, etc. Act, Articles 3(1) and 2(1)3 of the Criminal Act, Article 257(1)2 of the Criminal Act, Articles 3(1) and 27(1)2 of the Punishment of Violences, etc. Act, Article 276(1)1 of the Criminal Act, Article 37(1)10 of the Resident Registration Act, Article 37 of the same Act, Article 26(1)11 of the Punishment of Violences, etc. Act, Article 260(1)1 of the same Act, Article 260(3)1 of the Electronic Financial Transactions Act, Article 260(3)1 of the Punishment of Violences, etc. Act, Article 25(1)3)1 of the Criminal Act, Article 6(2)1)2(3) of the Criminal Act
1. Commercial competition;
Articles 40 and 50 of the Criminal Act (Punishments stipulated in the crime of perjury against Non-Indicted 1 who is the largest among the crimes of perjury, and who are sentenced to the punishment of perjury)
1. Selection of punishment;
Imprisonment with prison labor for the remaining crimes except for a violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.), violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.), violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.), and coercion.
1. Aggravation for repeated crimes;
Article 35 (Offense of Habitual Bribery)
1. Aggravation for concurrent crimes;
The former part of Article 37, Article 38(1)2, Article 50, and the proviso of Article 42 of the Criminal Act
1. A prosecutor indicted the criminal facts under Article 2(1)3 of the Punishment of Violences, etc. Act and Article 350 of the Criminal Act as stated in the judgment of the court below with respect to the crime under paragraph (6) of the same Article. This provision stipulates the same elements as the crime of habitual assault under Articles 351 and 350 of the Criminal Act without any special aggravated elements added thereto, and stipulates the same statutory punishment for the crime of habitual assault under Articles 350, and the same shall be adjusted to a limited term of at least three years, and only the application of the Act is left at the discretion of the prosecutor, resulting in confusion in the application of the Act, while losing the legitimacy and balance of the punishment system, thereby violating the basic principles of the Constitution guaranteeing human dignity and value (see, e.g., Supreme Court Decisions 2015Do970, Mar. 26, 2015; 2015Do309, Apr. 23, 2015).
The facts that the defendant led to the confession of most of the crimes in this case when the defendant was in the trial, that the defendant experienced difficulties in living a normal life from the time when she was committed due to congenital diseases, and that there is a need to support her children, etc. are favorable to the defendant. Although the defendant had already been sentenced for one year and six months due to a violation of the Punishment of Violences, etc. Act (even though she had been in prison at night and joint conflict), she re-offs the crime of habitual conflict during the repeated period, the period of the crime of habitual conflict is considerably long, she is too long, the victims are frequently, and the damage amount is considerably high, the defendant detained Nonindicted 3 by causing violence with rubber or by preventing him from getting off from getting off from the vehicle, and in light of the circumstances and contents of the crime, such as aiding and abetting the above evidence during trial without complying with it, considering the unfavorable circumstances of the defendant, the age, character and conduct, relation between the victim and his family, various factors, the motive and the result of the crime in this case, etc.
Judges Choi Ji-su (Presiding Judge)