(영문) 전주지방법원 2007. 8. 30. 선고 2005노1259 판결

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[폭력행위등처벌에관한법률위반(야간집단·흉기등상해)미수{인정된죄명:폭력행위등처벌에관한법률위반(집단·흉기등상해)미수}][미간행]

Escopics

Defendant

Appellant. An appellant

Prosecutor

Salycera

Defense Counsel

Attorney Park Young-young (National Assembly Line)

Judgment of the lower court

Jeonju District Court Decision 2005Ma412 Decided September 21, 2005

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One day of detention before the pronouncement of the judgment below shall be included in the above sentence.

Seized knife No. 1 (No. 1) shall be confiscated.

Reasons

1. Summary of the prosecutor's grounds for appeal;

Since the Defendant committed the instant crime in prison within three years after the prison term expires, the lower court sentenced the Defendant to a suspended sentence of imprisonment, which erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Determination on the grounds for appeal

According to the records, the defendant was sentenced to three years of imprisonment with prison labor at the Jeonju District Court on July 28, 199 for the obstruction of performance of official duties, etc. and completed the execution of the sentence on April 21, 2002, and the crime of this case was committed around November 25, 2004. According to the proviso of Article 62(1) of the Criminal Act, with respect to a crime committed by the defendant for a period of three years after the execution of the sentence became final and conclusive, the court below sentenced the suspension of the execution of imprisonment with prison labor to the defendant is erroneous in the misapprehension of law which affected the conclusion of the judgment, and the prosecutor's assertion pointing this out is with merit.

B. Ex officio determination

In addition, the court below ex officio examined the facts charged of this case by applying Articles 6, 3(2) and (1), 2(1), and 257(1) of the former Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006), and Article 257(1) of the Criminal Act to Article 6, 3(2) and (1), 2(1), and Article 257(1) of the Criminal Act. After the judgment of the court below was rendered, the part of aggravated punishment for the crimes committed at night under Article 3(2) of the former Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006) was deleted, and this constitutes "when the punishment is abolished or changed after the judgment is made" under Article 361-5(2) of the Criminal Procedure Act. Thus, the judgment of the court below is no longer maintained.

3. Conclusion

Therefore, the appeal by the prosecutor is well-grounded, and the judgment of the court below is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime acknowledged by this court and the evidence related thereto are as stated in each corresponding column of the judgment of the court below, except for the cases where "the defendant" in the first instance judgment and " around November 25, 2004" were inserted in the Jeonju District Court sentenced on July 28, 199 to three years of imprisonment for obstruction of performance of official duties, etc. and completed the execution of the sentence in the Chungcheong prison on April 21, 2002," and "the defendant shall be admitted as it is in accordance with Article 369 of the Criminal Procedure Act."

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 6, 3(1), and 2(1)3 of the Punishment of Violences, etc. Act, and Article 257(1) of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 (Limits under proviso of Article 42 of the Criminal Act: Provided, That it shall be limited)

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (Taking into account that the victim does not want punishment by mutual consent with the victim, etc.)

1. Calculation of the number of detention days before sentencing of the judgment;

Article 57 of the Criminal Act

1. Confiscation;