살인미수등
1. The judgment below is reversed.
2. The defendant shall be punished by imprisonment for not less than three years and six months; and
1. Summary of grounds for appeal;
A. Defendant 1) misunderstanding of the fact (the attempted murder) the Defendant only received the victim of the vehicle who tried to take a serious bath from the injured party.
However, the court below committed the crime of murdering the victim after hearing the statement that the defendant was aware that he was aware of his identity and right from the victim.
In this regard, the court below erred by misunderstanding the facts.
2) At the time of committing the instant murder, the Defendant, who was physically and mentally weak, had the ability to discern things or make decisions under the influence of alcohol.
3) Even if all of the charges of sentencing are found guilty, the sentence imposed by the court below (three years and six months of imprisonment) is too unreasonable.
B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
When the lower court fully convicted of each of the instant crimes, it did not apply Article 40 of the Criminal Act to the violation of the Road Traffic Act (Crime of Drinking Motor Vehicles) and the crime of violating the Road Traffic Act (Unlicensed Driving) on November 11, 2015, but first determined the punishment by selecting the applicable sentences, thereby having erred in determining the scope of the applicable sentences.
The court below ruled that the upper limit of punishment was 19 years of imprisonment.
However, if Article 40 of the Criminal Code is applied first and then the punishment is selected, and the punishment is aggravated and mitigated, the upper limit of punishment is 18 years and 6 months.
Therefore, the judgment of the court below is no longer maintained.
However, despite the above reasons for ex officio reversal, the defendant's misunderstanding of facts and argument about mental and physical weakness are still subject to the judgment of this court, and this will be examined.
B. As to the Defendant’s assertion of misunderstanding of the facts, the Defendant’s intent of murder does not necessarily require the intention of murder or planned murder, but is the death of another person due to his own act.