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(영문) 서울고등법원 2019.11.21 2019노1655

살인미수

Text

1. The part of the judgment below regarding the defendant's case shall be reversed.

2. The defendant shall be punished by imprisonment for a period of two years and six months;

Reasons

The lower court found the Defendant guilty of the instant charges and sentenced the Defendant to six years of imprisonment, and sentenced the Prosecutor’s request for an attachment order.

Since only the defendant filed an appeal, the part of the judgment below regarding the claim for attachment order against the defendant does not have the benefit of appeal.

Therefore, notwithstanding Article 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the part regarding the application for attachment order is excluded from the scope of the trial of this court. Therefore, the scope of the trial of this court is limited to the part concerning the defendant case

Summary of Grounds for Appeal

(In fact-finding and unreasonable sentencing) The defendant alleged a mistake of facts only did not participate in a net appraisal and decentralization and did not intend to kill the victim.

Nevertheless, the court below erred by misapprehending the fact that the defendant had the intention to kill the victim.

The sentence of imprisonment (six years of imprisonment and confiscation) imposed by the court below on the defendant is too unreasonable.

The lower court determined ex officio, based on Article 48(1)1 of the Criminal Act, forfeited one of the hives (Evidence No. 1) seized in the instant criminal act by applying Article 48(1)1 of the Criminal Act.

Article 48(1)1 of the Criminal Act provides that “any article provided or intended to be provided for an act of crime” may be confiscated in whole or in part in cases where it does not belong to a person other than the criminal or is knowingly acquired by a person other than the criminal after the crime is committed.”

According to the records of seizure records, the owner (investment) and owner of the seized 쇠(No. 1) are the defendants. However, according to the evidence duly adopted and examined by the court below and the court below, the above 쇠 was a tool in the singing practice room corridor operated by D.