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(영문) 서울고등법원 2019.04.26 2019노161

자살교사미수등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

A seized industrial knife.

Reasons

1. The summary of the grounds for appeal: The punishment imposed by the lower court on the Defendant (three years of imprisonment and confiscation) is too unreasonable.

2. Judgment on the grounds for appeal ex officio as to the number of crimes shall be examined ex officio; and

Where several acts or acts falling under the name of the same crime continue to be committed for a certain period under the single and continuous criminal intent and where the legal benefits from such damage are the same, each act shall be punished by a single comprehensive crime in total, but where the unity and continuity of the criminal's intent are not recognized or the method of the crime is not the same, each act constitutes a substantive concurrent crime.

(2) The Majority Opinion argues that the Defendant’s unity and continuity of a crime should be determined on the basis of logical and empirical rules, i.e., the method and form of an individual crime, motive for the crime, time interval between each crime, and the same opportunity and relationship, and whether there was a follow-up crime while the use of the same opportunity and relationship continues (see, e.g., Supreme Court Decision 2005Do4051, Sept. 30, 2005).

(See Supreme Court Decision 2016Do11318 Decided October 27, 2016 (see, e.g., Supreme Court Decision 2016Do11318, Oct. 27, 2016). The crime of attempted suicide as indicated in paragraph (4) of the criminal facts stated in the judgment below was committed by the Defendant: (i) around August 21, 2018, the Defendant: (ii) committed suicide on the part of the victim at the Helsan Sports Park, with an industrial knife on August 21, 2018; (iii) committed suicide on the bridge before the 22:30th of the same day; (iv) committed suicide on the part of the victim at the stairs of the Fow underground parking lot but told him to commit suicide; and (iv) committed suicide on the part of the victim at around 23:30 of the same day, the Defendant was considered to have attempted suicide on the floor of the parking lot.