[상해치사피고사건][고집1981(형특),364]
The case holding that excessive self-defense is established
In a case where the victim, without any justifiable reason, was able to defend the victim by continuously infringing the victim's body by means of violence, and the victim was able to defend the victim's body by continuously infringing the victim's body by means of violence, thereby damaging the victim's right shoulder by leaving the victim's right shoulder, and thereby causing death, the defendant's act of defense constitutes an excessive self-defense that exceeds the degree of reasonableness. However, since the victim's shoulder is not by a reasonable method but by excessive means, it constitutes excessive self-defense.
Article 21(1) and (2) of the Criminal Act
Defendant
Prosecutor and Defendant
Seoul Criminal District Court (81 High Court Decision 481)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
The detention days prior to the pronouncement of the judgment of the court below shall be included in the above sentence.
The gist of the grounds for appeal by the defendant's defense counsel is as follows: first, according to the suspect interrogation protocol as to the defendant prepared by the public prosecutor, the defendant's defense counsel's act constitutes self-defense or excessive self-defense, and the judgment of the court below is erroneous because there is an error of law by misunderstanding facts, misunderstanding the legal principles of self-defense or excessive self-defense, and second, the judgment of the court below is unreasonable because the defendant's punishment against the defendant is too excessive because the defendant's act is too unreasonable because the defendant's act is not sufficient to defend the above series of facts.
In addition, the main point of the prosecutor's appeal is that the judgment of the court below against the defendant is too unfasible and unfair.
First, the first point of appeal of the defendant's defense counsel is examined as to the first point of appeal of the defendant, the first point of the interrogation protocol of the defendant prepared by the public prosecutor, the first point of the fourth examination protocol of the defendant and the statement in the court room of the defendant's trial on April 24, 1981: around 00 hours when the defendant does not return to the house, and he was locked back to the victim (e.g., 52 years old) due to locking within the front of Seoul Station, and he was dried up, the victim was able to prevent the defendant from putting his her hand on the left hand, and the victim did not have the right part of the defendant's statement from the prosecutor's office because the defendant's son's son, who was the victim's left hand, tried to remove it from the ground, and the defendant's act was not followed by the defendant's statement made by the defendant's head and the defendant's right part of the defendant's statement made by the public prosecutor, and the victim did not face the above part of the defendant's statement.
Therefore, according to the statements of the defendant at the prosecutor's office and the trial court above, the defendant's act of defense should be defense in such a way that the defendant defends the infringement by the method of violence or suppressions the victim's self-defense in a way that the victim's right shoulders the victim's right shoulder by continuing to defend the victim's body without any justifiable reason. However, the defendant's act of defense constitutes excessive self-defense in excess of the degree of reasonableness of the defendant's act of defense.
However, the court below judged that the accident at issue occurred during the time between the defendant and the victim, and thus, the self-defense cannot be established. Therefore, the court below's appeal is reasonable, and the decision of the court below is not necessary to determine the remaining grounds for appeal.
Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the member is again decided.
On December 27, 1979, the defendant was sentenced to imprisonment with prison labor for a serious injury at the government branch of the Seoul District Court for ten months, and was released from prison on June 21, 1980. On April 24, 1981, the defendant was released from prison on June 24, 1980. On the ground that he did not return to prison due to the passage prohibition period of 20:0 on April 24, 1981, and he tried to grow from the side where the victim (mae 52 years old) is living in the vicinity of Seoul Station, and he did not go back to house, and he tried to stop to commit violence three times and continue to do so on the floor of the victim, and the defendant did so, in order to prevent the defendant from suffering from the death of the defendant, who was the victim's left hand, and caused the defendant's death to escape from the right side of the Red Cross by taking out the part of the defendant's 3rd to the right side of the Republic of Korea.
The summary of the evidence of the above criminal facts recognized as a member of the party is as shown in the corresponding column of the judgment of the court below, in addition to adding the "statement of the defendant in the trial room of the court below", and therefore, it is cited by Article 369 of the Criminal Procedure
The judgment below corresponds to Article 259 (1) of the Criminal Act. Since the defendant is subject to the judgment that constitutes a repeated crime, the defendant is subject to repeated crime within the limit of the proviso of Article 42 of the Criminal Act in accordance with Article 35 of the Criminal Act, and the so-called defendant's so-called excessive self-defense as mentioned below is subject to excessive self-defense pursuant to Articles 21 (2) and 55 (1) 3 of the Criminal Act, it is legally mitigated pursuant to Article 21 (1) and Article 55 (1) 3 of the Criminal Act. In addition, it is recognized that there is a reason to take into account the circumstances such as the defendant's misunderstanding and the fact that there has been an agreement between the victim's bereaved family members and his bereaved family members, the defendant shall be punished by imprisonment for ten months within the term of punishment to be mitigated by Article 53 and Article 55 (1) 3 of the Criminal Act.
At the time of the occurrence of this case, the defendant's defense counsel asserts that the defendant's so-called "self-defense" is a so-called "self-defense" because he leaves the victim in order to oppose the victim by blicking the her clock at the time of the occurrence of this case. As determined in the above reasons for reversal, the so-called "self-defense" cannot be viewed as "self-defense" falling under Article 21 (1) of the Criminal Act, but it constitutes excessive self-defense under Article 21 (2) of
It is so decided as per Disposition for the above reasons.
Judge final (Presiding Judge) Kim Jong-dae et al.