[폭력행위등처벌에관한법률위반·강간피고사건][고집1975형,203]
The meaning of "the crime" under the latter part of Article 3 (1) of the Punishment of Violences, etc. Act.
For the purpose of the latter part of Article 3 (1) of the Punishment of Violences, etc. Act, the term "the crime" means only the crimes specified in Article 2 (1) of the Criminal Act, and does not refer to habitual offenders defined in Article 2 (1) of the same Act, or habitual offenders defined in paragraph (2) of the same Article, or joint offenders.
Articles 3 and 2 of the Punishment of Violences, etc. Act
Supreme Court Decision 72Do305 decided Apr. 28, 1972; 73Do2104 decided Oct. 10, 1973
Defendant
Defendant
Cheongju District Court of the first instance 74 Gohap142 decided
The guilty portion in the original judgment shall be reversed.
A defendant shall be punished by imprisonment for one year.
The ninety-five days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.
Provided, That the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.
The excessive one (No. 1) seized shall be forfeited from the accused.
The first point of the grounds for appeal of the defendant's civil defense counsel's civil defense counsel's civil defense counsel's civil defense counsel's first point is that even according to the evidences shown in the records, the facts charged by the defendant cannot be found to have been arrested against the victim's will in this case, but the court below affected the judgment by misunderstanding the facts and misunderstanding the facts. The second point of the reasons is that the defendant's possession of excessive materials at the time of original judgment was intended for rape, and the defendant's original decision was not committed collectively, habitually or at night, and therefore, the court below applied the Punishment of Violences, etc. Act to the defendant, and the third point of the reasons for appeal and the summary of the reasons for appeal of the defendant's attorney at the least two sub-party is unfair because the court below's sentencing against the defendant is too unreasonable.
Therefore, first of all, the first point of appeal is examined, and in light of the records, the evidence duly adopted by the court below after examining the evidence can be fully admitted to the criminal facts of the defendant, which the court below decided, and the records are examined, and there is no error of law as pointed out otherwise in the process of fact-finding by the court below, and therefore, the grounds of appeal as to mistake of facts cannot be accepted.
The second reason is that "the crime" under the latter part of Article 3 (1) of the Punishment of Violences, etc. Act refers to only the crime under the provisions of the Criminal Act in the meter of Article 2 (1) of the same Act, and it does not refer to the habitual offender under Article 2 (1) of the same Act, the night offender under Article 2 (2) of the same Act, or the joint offender under Article 2 (2) of the same Act. Thus, there is no illegality in the court below's decision that the latter part of Article 3 (1) of the same Act was applied to the defendant's act of carrying a deadly weapon as a deadly weapon.
Finally, considering the third point of the same reason, considering the circumstances such as the age, character and conduct, intelligence and environment of the defendant, motive, means and consequence of the crime in this case, relationship with the victim, circumstances after the crime, etc., the judgment of the court below on the defendant's punishment against the defendant is too unreasonable. Therefore, the defendant's appeal is reasonable in this regard, and therefore, the conviction of the court below cannot be reversed.
Therefore, according to Article 364 (6) of the Criminal Procedure Act, the guilty portion of the judgment of the court below shall be reversed, and a party member shall be decided again after pleading.
The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding case of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
The court below's decision falls under the latter part of Article 3 (1), Article 2 (1), Article 276 (1) of the Punishment of Violences, etc. Act, and Article 276 (1) of the Criminal Act. Since there are grounds to take into account the circumstances, such as that the defendant is the first offender and the victim does not have been punished after the crime, the defendant shall be punished by imprisonment for one year within the scope of the term of punishment reduced by Article 53 and Article 55 (1) 3 of the Criminal Act, and the defendant shall be punished by imprisonment for 95 days within the number of detention days before the sentence of the court below is sentenced in accordance with Article 57 of the same Act, and the execution of the above sentence shall be suspended for two years from the date when the judgment becomes final by Article 62 of the same Act, and excessive one (Evidence 1) seized from the defendant under Article 48 (1) 1 of the same Act, since it does not belong to a person other than the defendant's goods provided in this case.
It is so decided as per Disposition for the above reasons.
Judges Limited Jin-jin (Presiding Judge)