[폭행치사피고사건][고집1977형,183]
Whether it is necessary to judge the primary facts charged in case of a conviction of the primary facts charged.
The facts of this case are clear that there are two or more charges of violation of the Punishment of Violence, etc. Act, which is the primary facts charged, but if there are two or more charges of violation, the judgment of conviction against one party would have expressed the purport of rejecting the remainder of the charges. Therefore, as long as the court below rendered a conviction against the violation of the Punishment of Violence, etc. Act, which is the primary facts charged, it is not necessary to again indicate the judgment on the violation of the order and reasons of the judgment.
Article 254 of the Criminal Procedure Act
Supreme Court Decision 76Do1126 Delivered on May 25, 1976
Defendant
Prosecutor
Yeongdeungpo Branch Court of Seoul District Court of the first instance (74 high Gohap175)
The prosecutor's appeal is dismissed.
The gist of the prosecutor's appeal is that the prosecutor has instituted a public prosecution for the offense of assault and death around the case, and the court below did not make a decision on this, which is erroneous in the judgment of the court below, and if the court below did not recognize the conviction of the primary facts charged, it is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.
However, according to the records, it is evident that the facts of this case are two facts of violation of the Act on the Punishment of Violence, etc., which is the electrical charge of the crime of homicide in the indictment and the facts of violation of the Act on the Punishment of Violences, etc., which is the ancillary charge. If there are two or more facts of violation in the indictment, the judgment was pronounced guilty against one of the two or more facts of violation. On the other hand, if the judgment was pronounced guilty as to the violation of the Act on the Punishment of Violences, etc., which is the ancillary charge, the court below is not necessary to again indicate the judgment on the points of the death by assault, etc. in the order and reasons of the judgment, and even if the court below reviewed various evidences duly admitted by the court below in light of the records, it is difficult to recognize that there exists a causal relationship between the death by the defendant and the death by the deceased non-indicted, which is the main charge of the crime of homicide in the indictment, and it is just in the court below's decision that did not recognize the primary facts of violation
Therefore, the prosecutor's appeal is dismissed under Article 364 (4) of the Criminal Procedure Act and it is so decided as per Disposition.
Judges Oral-ho (Presiding Judge)