[무고][집24(3)형,82;공1977.1.1.(551) 9636]
(a) Whether it falls under a grave, which is the object of the crime of excavating a grave, because the sprinking of the grave is lost, the area adjacent to ordinary soils, and there is no marking, such as tombstones, etc., and thus it is impossible to confirm that the grave is buried;
(b) Whether an abandoned grave becomes the object of a crime of excavation of a grave;
1. Even in cases of a grave, the spawn of which is lost, near ordinary soils, and which cannot be confirmed because there is no marking, such as tombstones, etc., if there is a person suspected of engaging in religious rites, such grave shall not be considered as a grave without delay, which is the object of religious rites, nor shall it be considered as a grave, which is the object of the crime of excavation of a grave;
2. Even if it is a secret grave, it cannot be excavated and opened without permission of the authorities.
Defendant
Attorney Yu Chang-chul
Jeonju District Court Decision 76No793 delivered on July 21, 1976
The appeal is dismissed.
Judgment on the ground of appeal No. 1 by the defendant
According to the reasoning of the first instance judgment maintained by the court below, the non-indicted Kim Young-soo found that he excavated the funeral of the defendant's mother's mother located within the 161-5 forest located within the 161-5 forest, i.e., the calculation of the 3th of May 29, 1975 08:00, and that when the defendant returned to his new burial at the same place on the seventh of the same year, he discovered the funeral funeral of the non-indicted Clerks who was buried on the right side of the tomb and found that he opened the funeral in approximately five meters away away from that place, and the defendant filed a charge for the excavation of the grave on the ground of the above facts, and on August 11, 1975, the defendant found the funeral funeral of the above clerk for the purpose of having the above Kim Young-gun sentenced to criminal punishment. Thus, the above defendant's accusation against the above defendant was filed by submitting the head of the Si/Gun to the head of the Si/Gun, who made a final accusation.
According to the records, if the above fact-finding does not violate the rules of evidence, and the defendant found the remains of his body in terms of the above defendant's mother's funeral, and it was known that there was another grave which had been revealed that there was another grave that would not be buried adjacent to the grave, and that it was opened as stated in its reasoning when intending to bury them again on the ground, and if the defendant had already excavated the grave immediately adjacent to the defendant's mother's funeral by another person, it was destroyed by a part of the remains of the above clerk's funeral which was buried adjacent to the grave, and then the defendant excavated the grave again and opened the remains at another place, it cannot be deemed as constituting the above grave's excavation, and even if the defendant did not know that there was no obvious difference between the defendant's body's remains and his remains, it cannot be deemed as an act of cutting away the grave's remains and thus, it cannot be said that there was no obvious difference between the defendant's remains and his body's remains to be buried adjacent to the grave before 13 years old.
Judgment on the second ground for appeal
According to the records, according to the statement of grounds of appeal submitted by the defendant by his defense counsel, the facts that the judgment of the court of first instance is more severe than the sentence of the defendant, and if there are grounds that affect the result of the judgment including such grounds of unfair sentencing, the appellate court may investigate them ex officio, even if not included in the grounds of appeal. However, the court below dismissed the appeal on the grounds that the sentencing of the judgment of the court of first instance against the defendant was not unreasonable after examining the sentencing of the judgment of the court of first instance, and the purport of rejecting the grounds of appeal of unfair sentencing in the judgment of the court of first instance is to include the purport of rejecting the grounds of appeal of unfair sentencing in the judgment
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Han-jin (Presiding Justice)