[2] Data essential to determine whether to choose a death penalty and the method of examining necessary sentencing

[3] The case reversing the judgment of the court below on the ground that the judgment of the court below was reversed on the ground that the court did not conduct a necessary investigation and examination as to the sentencing conditions

[2] In order to determine whether to choose a death penalty, the court should take into account the factors indicated in the records only in a flat area. Furthermore, it should secure objective materials to examine the Defendant’s subjective elements of sentencing, such as character and conduct, environment, intelligence, risk of recidivism, possibility of improvement and edification, and then examine whether to choose a death penalty through which it can be examined. In addition, it should take into account the Defendant’s mental condition or psychological condition before and after the Defendant’s resolution, preparation, and execution of the crime, and take into account expert opinions in the relevant fields, such as mental medicine or psychology, while taking into account the changes in the Defendant’s psychological condition before and after the commission of the crime, etc.

[3] The case reversing the judgment of the court below on the ground that the judgment of the court below was reversed on the ground that the court did not fully investigate and examine the necessary conditions for sentencing when choosing a death penalty

1. Summary of the judgment below

According to the reasoning of the judgment below, the court below held that it cannot be said that there was no reason to determine the victim's punishment, such as the victims' age, the progress of their growth and attitude, and the arrest of the victims. Meanwhile, the defendant committed each crime of this case within the period of repeated crimes after completing special robbery and the theft, etc., and the defendant committed rape against those who died of another person's property for the purpose of preparing entertainment expenses, and even if some victims were involved in rape, it is highly likely that the defendant might be subject to punishment for the crime of this case, even if he did not know about the victim's face, and even if he did not take measures to kill the victim's body, it was hard to find out that the victim's new rape had been involved in the crime of this case, and that there was no possibility to injure the victim's body, such as rape, three times more times more, five times more, and two times more, more, more than three times more, and more, more than once the victim's new rape.

2. The judgment of this Court

In light of the fact that the death penalty is a very cold punishment that deprives human life of himself/herself of it, it is extremely exceptional punishment that can be presented by the dual judicial system of a marry state, the sentence of death penalty should be allowed only where there are objective circumstances to recognize it in light of the degree of responsibility for the crime and the purpose of punishment. Therefore, in sentencing death penalty, it should be determined by comprehensively considering the following factors: (a) the offender’s age, occupation and experience, character and conduct, intelligence, education degree, growth process, family relation, existence of criminal records, relationship with the victim; (b) motive for the crime; (c) degree of preparation; (d) method and method of preparation; (d) degree and degree of importance of the result; (e) the number of victims and damage assessment; (e) the core and attitude of the crime after the crime; (e) the degree of damage recovery; and (e) the likelihood of securing the defendant’s mental and physical factors to be examined before and after the crime; and (e) the defendant’s decision on whether to choose a new crime should be determined by examining more subjective elements of sentencing.

However, this case begins with the first instance court and the court below's statement of reasons for appeal, etc., arguing that it is necessary to examine the progress and present state of the crime of this case by failing to restrain shocking any kind of crime and committing a series of crimes on their own. In light of the facts of the crime of this case committed by the defendant, it may be doubtful that the defendant does not interfere with shocking capacity, and the record also shows that the defendant has been unable to carry out a short-term investigation on the crime of this case including violation of the Act on the Aggravated Punishment, etc. of Specific Crimes. From 21 December 201 to 201, the defendant had been living together for 10 years since he was released from prison, and there was no doubt that the defendant had been carrying out a short-term investigation on the crime of this case, and that he had been working for 2 years after his life in Ulsan and 10 days after his life together with his own prison, and that he had been engaged in a series of special larceny for 10 years after his death.

In light of the fact that the defendant is the 20th young age and has shown the attitude of breaking the wrongs in the course of committing the crime since the investigation agency, and the growth environment of the defendant, etc., the court below should have secured objective data to examine the defendant's subjective sentencing factors such as character, environment, intelligence, risk of recidivism, possibility of improvement and edification, and should have examined whether or not to choose the death penalty through reviewing the opinions of experts. As pointed out earlier, the court below should have tried in depth and thoroughly whether or not there are special circumstances that can justify the sentence of the death penalty by considering the opinions of experts in relation to the mental or psychological state existing before and after the crime of this case.

Nevertheless, the judgment of the court of first instance, which maintained only a simple trial on the basis of the sentencing data as shown in the investigation records, without separately considering the investigation or examination of the sentencing conditions of the defendant, except the defendant's mother's testimony, was erroneous in the misapprehension of legal principles as to the determination of death penalty, which led to failure to exhaust all necessary deliberations, and further, the judgment of the court below, which was made in such a state of incomplete trial, constitutes a case where there is a substantial reason to recognize that the determination of death penalty is extremely unfair. Thus, the ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)