[강도강간미수ㆍ강도상해][집32(1)형,459;공1984.4.15.(726) 558]
(a) The applicable sentences in cases where the lowest limit of a serious crime in an ordinary competition is less than the lowest sentence under other Acts;
B. A case where it cannot be viewed as having asserted of mental suffering from mental illness
A. In a case where a single act stipulated in Article 40 of the Criminal Act constitutes several crimes, the punishment specified in the serious crime shall be imposed. The purport of Article 40 of the Criminal Act, which provides for the most severe punishment among the names of the several crimes, cannot be imposed somewhat less than that of the lowest punishment under other Acts, should be included in the provision that the punishment shall be imposed within the scope of the severe penalty under each Act, i.e., the upper limit and the lowest limit under each Act.
B. In the statement of grounds for appeal, the part that stated, “The Defendant, while under the influence of alcohol as a man, tried to block the front of the victim and scarcity as much as he is neglected,” is merely a mere description of the motive and circumstance of the crime, and it cannot be deemed that the Defendant made a claim of mental disability due to drinking.
A. Article 40 of the Criminal Act; Articles 10(2) and 51 of the Criminal Act; Article 323(2) of the Criminal Procedure Act
Defendant
Defendant
Attorney Kim Jong-chul
Seoul High Court Decision 83No2287 delivered on November 16, 1983
The appeal is dismissed.
The number of detention days after an appeal shall be included in the original sentence.
The defendant's defense counsel's grounds of appeal are examined.
With respect to Section 1:
According to the judgment of the court below and the evidence of the court of first instance cited by the court below, since the criminal facts of taking property rights against the defendant are recognized lawfully, it cannot be said that there was an error of mistake of facts, such as the theory of lawsuit. We are without merit.
With respect to Section 2:
In the event that a single act stipulated in Article 40 of the Criminal Act constitutes several crimes, the punishment stipulated in the preceding sentence shall be imposed in accordance with Article 25(2) of the Criminal Act, which provides for the most severe punishment among the names of the several crimes, and the purport that it cannot be imposed somewhat than the lowest punishment stipulated in other Acts. In other words, in determining the punishment for several crimes, it shall be deemed that the punishment is imposed within the scope of both the upper limit and lower limit of the respective provisions of the Act. This is because, in this case, the punishment for a serious crime unless viewed so, shall be imposed. As in this case, one act shall be punished for a attempted rape and a robbery, which constitute the crime of injury by robbery, and shall be punished for a limited term, which constitutes the crime of attempted robbery and the crime of attempted robbery, which constitutes the crime of attempted robbery and the crime of limited imprisonment, and shall be mitigated for a limited term under Article 25(2) of the Criminal Act, and then, the punishment for attempted robbery shall be mitigated within the prescribed minimum limit of the punishment.
As to the so-called judgment of the court below, the decision of the court below that the punishment prescribed in the crime of robbery and rape shall be punished, and that the punishment shall be mitigated within the scope of the limited term of imprisonment for the crime of robbery and bodily injury after taking the prescribed punishment, and then the punishment shall be mitigated within the scope of the limited term of imprisonment for the crime of robbery and bodily injury, is insufficient, but it is not in accordance with the purport of the above. Thus, the decision of the court below is just, and there is no violation of the legal principles as to statutory mitigation or violation of the principle of no punishment without law
With respect to the third point:
In the statement of grounds for appeal, the part stating "the defendant, while under the influence of alcohol as a man, is merely a mere description of the motive and circumstance of the crime, and it cannot be deemed that he/she made a claim of mental and physical disability due to drinking, as he/she merely stated the motive and circumstance of the crime. Therefore, there is no argument that the judgment of the court below erred in the omission of judgment as to the claim of mental and physical disability.
Therefore, the appeal is dismissed. Part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.
Justices O Sung-sung(Presiding Justice)