[상해치사,폭력행위등처벌에관한법률위반][집39(2)형,708;공1991.7.1,(899),1685]
Where one of the accomplices has committed the murdering act in the opportunity of injury and assault, the other accomplices' liability;
Where one of the accomplices intentionally kills a victim in an opportunity to inflict bodily injury on the victim or assault jointly with his/her accomplice, even though he/she did not support the liability for the crime of murder because he/she conspireded to commit murder or did not participate in murder, as long as he/she did not support the liability for the crime of murder because he/she was aware of the act of bodily injury or assault and resulted in the result of the act of assault that could have been predicted by the act of assault by the accomplice, the liability for the crime of
Articles 30, 250, and 259 of the Criminal Act
Supreme Court Decision 84Do1544 decided Oct. 5, 1984 (Gong1984, 1814) 88Do1046 decided Sep. 13, 1988 (Gong1988, 1293) 90Do2362 decided Dec. 26, 1990 (Gong191, 678)
Defendant
Defendant
Attorney Park Dong-young
Daegu High Court Decision 90No799 delivered on February 6, 1991
The appeal is dismissed.
The number of detention days after an appeal shall be included in the calculation of the original sentence.
The defendant and defense counsel's grounds of appeal are examined together.
If the evidence admitted by the court of first instance as cited by the court below is examined by comparing the records and records, the defendant can sufficiently recognize the opportunity for the co-defendant to inflict bodily injury on the victim or assault on the victim's body in collaboration with co-defendants including the court below's co-defendants, and it cannot be deemed that there was an error of law of misconception of facts in violation of the rules of evidence without properly examining the facts like the theory of the court below. If the facts are the same, even though the defendant did not support the crime of murder because he conspired to commit murder or did not participate in murder, since he did not have any awareness about the act of murder and assault, and as long as the result of the death was predicted due to the harmful act of the accomplice as possible, the liability for the crime of murder cannot be exempted (see Supreme Court Decision 8Do1046, Sep. 13, 198). It cannot be viewed that there was an error of law by misunderstanding the legal principles like the theory of lawsuit, and there is no ground for all.
Therefore, the defendant's appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.
Justices Yoon Jae-ho (Presiding Justice)