A defendant shall be punished by imprisonment for one year.

A. On the judgment of the court of first instance, the punishment (two million won of fine) imposed by the court of first instance against the defendant is too unreasonable.

나. 제2 원심판결에 대하여 1) 사실오인 피고인은 5급 척추장애인으로서 100m 넘게 뛸 수 없고, 당시 만취 상태여서 범행 당시의 상황을 전혀 기억할 수 없으며, 피해자들의 진술만이 범행의 유일한 증거인 점 등에 비추어 보면 피고인이 공소사실과 같이 경찰을 폭행하고 권총을 빼앗아 도주하고 협박한 사실을 인정할 수 없다. 그럼에도 이 사건 공소사실을 유죄로 인정한 제2 원심판결에는 사실을 오인하여 판결에 영향을 미친 위법이 있다. 2) 양형부당 제2 원심이 피고인에 대하여 선고한 형(징역 1년)은 너무 무거워서 부당하다.

2. Determination

A. Prior to the judgment on the grounds for appeal by the Defendant’s ex officio, this Court tried to concurrently examine each appeal case against the first and second judgment. Since each of the offenses listed in the judgment of the court below is concurrent crimes under the former part of Article 37 of the Criminal Act, and the punishment should be sentenced pursuant to Article 38(1) of the Criminal Act. In this regard, the part of the judgment of the court of first and second judgment against the Defendant cannot be maintained any more.

However, the defendant's assertion of mistake is still subject to the judgment of this court, so it is judged.

B. The following circumstances acknowledged by the lower court’s judgment on the Defendant’s assertion of mistake of facts and the evidence duly admitted and examined by the court below and the trial court, namely, E, the police and the trial court of the Yangju Police Station: (a) the Defendant took a gun in the process of fighting his body with the Defendant; and (b) the Defendant was said to have taken a gun in the process of fighting his body with the Defendant; and (c) the police officer in charge of the police box assigned the same police box, as well as the Defendant, took the gun from the Defendant.