특수상해
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and two months.
1. Summary of grounds for appeal;
A. The Defendant, by means of a knife, did not inflict an injury on the victim.
Nevertheless, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment, since it found guilty of the facts charged in this case.
B. The punishment of the lower court (one year and six months of imprisonment) is too unreasonable.
2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant for an ex officio judgment.
In the trial of the party, the prosecutor applied the applicable law to “special injury” in the name of the defendant as “violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)” and Article 2(1)3 of the Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act as “Article 258-2(1) and Article 257(1) of the Criminal Act” respectively. Since this court permitted this and changed its subject to the judgment, the judgment of the court below was no longer maintained.
However, the defendant's assertion of mistake of facts is still subject to a trial by this court, regardless of the above reasons for reversal of authority.
3. Judgment on the Defendant’s assertion of mistake of facts
A. In determining the credibility of the statement by the victim, etc. supporting the facts charged, the credibility of the statement shall be assessed in consideration of all the circumstances that make it difficult to record in the witness examination protocol, such as the appearance and attitude of the witness, and the penance of the statement, which are being recorded in the open court after being sworn before a judge, as well as whether the statement conforms to the rationality of the statement itself or the empirical rule, or the statement by the third party, and whether the statement is consistent with the witness evidence or the statement by the witness in the open court (see, e.g., Supreme Court Decisions 2008Do7917, Jan. 30, 2009; 2012Do2631, Jun. 28, 2012).