폭행등
The judgment below
The guilty part against the defendant shall be reversed.
A defendant shall be punished by imprisonment for one year.
except that this shall not apply.
1. Of the facts charged, the lower court dismissed the prosecution against the Defendant regarding the charge of assault, and convicted the Defendant of violating the Punishment of Violences, etc. Act (a group, deadly weapon, etc.). Only the Defendant appealed as to the guilty portion of the lower judgment.
Therefore, since the judgment of the court below to dismiss the public prosecution against the defendant is separated from the original judgment, the part to dismiss the public prosecution is excluded from the scope of this court.
Ultimately, among the judgment of the court below, only the guilty portion against the defendant is within the scope of the judgment of the court of this Court [each act written in the facts charged by the defendant is closely related to the time and place close to a series of continuous acts, the victim also is identical, and the defendant makes a single and continuous crime against the victim at a close time and place close to the victim, and it is reasonable to evaluate the whole act as one act.
Therefore, the crime of assault by a defendant is incorporated into a crime of violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) and it is right to view that the crime of assault by a defendant constitutes only one crime of violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.).
However, as seen earlier, the decision of the court below to dismiss a public prosecution against the defendant is not subject to the judgment of the court below after being separately determined as it is, and the decision to dismiss the public prosecution does not have res judicata effect. Thus, the decision to dismiss the public prosecution against the defendant is judged as to the legitimacy of the grounds for appeal only with respect to the violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.) among the facts charged against the defendant.
3. An ex officio judgment (Changes in Indictment) The Prosecutor shall be held as “special injury” under the Act on the Punishment of Violences, etc. (Influence of Group, Deadly Weapons, etc.) and the applicable provisions of the Act on the Punishment of Violences, etc. (Influence of the Defendant).