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(영문) 광주지방법원 2014.05.28 2014노764

폭력행위등처벌에관한법률위반(상습폭행)등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Reasons

Summary of Grounds for Appeal

Since the Defendant did not commit each crime in the judgment of the court below, the court below erred by misapprehending the facts.

At the time of each of the instant crimes, the Defendant was in a state of having no or weak ability to discern things or make decisions due to mental illness, etc.

The sentence of unfair sentencing (one year and six months of imprisonment) by the lower court is too unreasonable.

Judgment

We examine ex officio the grounds for appeal by the defendant prior to the judgment on ex officio.

Habitually defined in Article 2 (1) of the Punishment of Violences, etc. Act does not mean only the habituality between the crimes listed in each subparagraph of the same paragraph, but means the habit of violence that covers all the crimes listed in each subparagraph of the same paragraph.

Therefore, if a person with the above habitive behavior commits a different number of crimes under Article 2(1) of the Punishment of Violences, etc. Act, each act constitutes a single comprehensive crime of habitual violence under the most serious statutory penalty of each subparagraph.

In light of the aforementioned legal principles, the crime of violation of the Punishment of Violences, etc. Act (Habitual Intimidation) and the crime of violation of the Punishment of Violences, etc. Act (Habitual Violence) in the judgment of the court below is an inclusive crime. However, the judgment of the court below that deemed each of the above crimes as substantive concurrent crimes and aggravated punishment is erroneous in the misapprehension of legal principles, and such illegality affected the conclusion of the judgment.

Therefore, the judgment of the court below cannot avoid reversal in this respect.

However, despite the above reasons for ex officio reversal, the defendant's assertion of misunderstanding of facts and the assertion of mental disorder still are subject to the judgment of this court.

D, M, F, H, I, J, N,O, P, L, and Q are the original judgment from the investigative agency to the court of the original judgment.