폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
However, for a period of two years from the date this judgment becomes final and conclusive.
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentence (one and half years of imprisonment, and confiscation) is too unreasonable.
2. Ex officio determination
A. Prior to the judgment on the grounds for appeal by the defendant, the prosecutor applied for changes in the indictment to "Article 3 (1) and Article 2 (1) 3 of the Punishment of Violences, etc. Act and Article 257 (1) of the Criminal Act" under "Article 258-2 (1) and Article 257 (1) of the Criminal Act" as the name of the crime in the charge at the trial of the party. The prosecutor applied for changes in the indictment to "Article 258-2 (1) and Article 257 (1) of the Criminal Act", and since the court permitted the changes, the judgment of the court below was no longer maintained.
B. In addition, Article 48(1)1 of the Criminal Act provides that “The whole or part of the goods provided or intended to be provided to a person other than an offender who does not belong to the ownership of a person other than the offender or knowingly acquired by a person other than the offender after the crime may be confiscated.”
In this regard, according to the evidence duly adopted and examined by the court below, one (No. 1) owner of the iron bars (Evidence No. 1) for the seized construction work is indicated as the defendant. However, the police interrogation protocol against the defendant stated that the defendant was a steel bars in the construction site where the defendant works. Thus, the owner of the above seized articles can be recognized as a person other than the defendant. Thus, the above seized articles cannot be confiscated.
Nevertheless, since the court below confiscated the above confiscated articles from the defendant, the court below erred by misapprehending the legal principles on confiscation, which affected the conclusion of the judgment, thereby making it impossible to maintain it further.
3. In conclusion, the judgment of the court below is reversed, and the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.