살인미수등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for five years.
The seized knife No. 1 (No. 1), excessive.
1. Summary of grounds for appeal;
A. Defendant 1) Defendant 1 did not mislead the victim of the fact (the attempted murder) and did not intend to kill the victim.
Nevertheless, the judgment of the court below which found this part of the facts charged guilty is erroneous by misunderstanding the facts and affecting the judgment.
2) The punishment sentenced by the lower court (seven years of imprisonment) is too unreasonable.
B. The sentence imposed by the prosecutor (unfair sentencing) by the lower court is too unhued and unreasonable.
2. Determination
A. 1) Determination of the Defendant’s assertion of misunderstanding of the facts does not necessarily require the intention of murder or planned murder, and it is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to his own act, and its recognition or prediction is not only conclusive but also uncertain, so-called willful negligence is recognized. The Defendant did not have the intention of murder at the time of committing the crime.
In the case of dispute, whether the Defendant had the intent to commit murder at the time of committing the crime ought to be determined by comprehensively taking account of the objective circumstances before and after the crime, such as the background leading up to the crime, motive for the crime, types of deadly weapons or tools prepared for the crime, the nature and repetition of the attack, and the possibility of the occurrence of death (see, e.g., Supreme Court Decision 2010Do15144, Jan. 13, 201). 2) The Defendant asserted as the grounds for appeal in the lower court. In full view of the evidence in its holding, the lower court determined that the Defendant had the intent to murder the victim at the time of committing the crime, and that according to the circumstances acknowledged by the evidence above, the lower court recognized that the Defendant had the intent to murder the victim at the time of committing the crime.
A thorough examination of the evidence duly adopted and examined by the court below, the defendant raised the victim's title.