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(영문) 대구고등법원 2015.10.29 2015노239

살인미수등

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1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for three years;

3. One Daegu District Prosecutors' Office that has been seized;

Reasons

1. Summary of grounds for appeal;

A. Defendant and person subject to attachment order and candidate for medical treatment and custody 1) Defendant and person subject to attachment order and person subject to attachment order and person subject to medical treatment and custody (hereinafter “Defendant”).

(2) At the time of each of the instant crimes, each of the instant crimes was in the state of lacking the ability to discern things or make decisions due to recognition disorder caused by brain damage at the time of the previous traffic accident, collision adjustment disorder, and change of character. (2) The lower court’s sentence of unfair sentencing (one year of imprisonment) is too unreasonable.

3. As to the part of the request for attachment order, the Defendant committed each of the instant crimes due to brain damage at the time of the past traffic accident, and thus, if the Defendant is under a mental treatment in parallel with his/her efforts to recover trust among his/her family members, the Defendant cannot be deemed to pose a risk of committing murder again in the future.

Therefore, the judgment of the court below that ordered the defendant to attach an electronic tracking device for ten years on the ground that the defendant is in danger of recidivism is illegal.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. 1) As to the part of the defendant's case, the prosecutor ex officio made an application for changes in the indictment with regard to "violation of the Punishment of Violences, etc. Act (collective assault, deadly weapons, etc.)" as "special assault" among the facts charged against the defendant, and "Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 260(1) of the Criminal Act" as "Articles 261 and 260(1) of the Criminal Act" among the applicable provisions of the Act, and since this court permitted this, the part of the judgment of the court below regarding the defendant's case can no longer be maintained. 2) Since the judgment of the court below changed the object of the trial by this court, the appraisal doctor AS who made a mental appraisal of the defendant with respect to the defendant's mental symptoms of the defendant as "any character and behavior disorder caused by brain-dead disease, damage, and functional disorder."