(영문) 서울서부지방법원 2014.11.06 2014노672



The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Provided, That the above punishment shall be imposed for three years from the date this judgment became final and conclusive.


1. Summary of grounds for appeal;

A. At the time of the instant crime, the Defendant, under the influence of alcohol, was in a state which lacks the ability to discern things and make decisions.

B. The lower court’s imprisonment with labor for a limited period of ten months is unreasonable.

2. Determination

A. According to the records of judgment on the claim of mental retardation, it is recognized that the defendant was somewhat drunk at the time of the crime of this case, but in light of various circumstances, such as the background, means, and actions before and after the crime, it does not seem that the defendant had the ability to discern things or make decisions. Therefore, the above assertion is without merit.

B. The Defendant’s judgment on the assertion of unfair sentencing should be subject to strict punishment corresponding to the act in that he/she committed the instant crime even though he/she had a record of having been sentenced to punishment for the same kind of crime.

However, in light of the following: (a) the confession of the crime for the first time and the depth of the crime; (b) the circumstances leading up to the commission of one time upon C’s repeated request; (c) the Defendant did not perform medication; (d) the Defendant’s health condition is not good; and (e) other factors of sentencing specified in the records and arguments, such as the motive and background of the crime; (c) the circumstances after the crime was committed; (d) the degree of punishment against accomplices; and (e) the Defendant’s age and environment, etc., are considered, the lower court’

3. In conclusion, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act on the grounds that the defendant's appeal is with merit.

Criminal facts

The summary of the facts charged and the summary of the evidence recognized by the court are the same as the corresponding columns of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Act on the Management of Narcotics, Etc., which is the basis of criminal facts, and Article 10 of the former Act on the Management of Narcotics, Etc., which is the basis of the choice of punishment.