폭력행위등처벌에관한법률위반(상습폭행)
The judgment of the court below is reversed.
1. The defendant shall be punished by a fine of seven million won;
2. The above fine shall not be paid by the defendant.
1. In spite of the prosecutor’s summary of the grounds for appeal (legal scenarios) recognized the habitual nature of violence against the defendant, the lower court determined that the crime of assault under the Criminal Act was not established without recognizing habituality by misapprehending the legal doctrine on the habit of violence, and dismissed the prosecution of this case on the grounds that the expression of intent desired to punish the victim was withdrawn.
2. Determination
A. Prior to the judgment on the grounds for appeal by the prosecutor ex officio, prior to the judgment on the grounds for appeal by the prosecutor, the name of the crime was found to be "Habitual assault" from "violation of the Punishment of Violences, etc. Act (Habitual Violence)" to "Article 2 (1) 1 of the Punishment of Violences, etc. Act and Article 260 (1) of the Criminal Act" to "Article 264 and Article 260 (1) of the Criminal Act" and "Article 260 (1) of the Criminal Act" to be changed to "Article 264 and Article 260
Therefore, the judgment of the court below can no longer be maintained.
However, the judgment of the prosecutor's assertion of misapprehension of the legal principle is still subject to the judgment of the court.
B. Determination of the misapprehension of the legal principle as to the assertion of habitual nature (1) Article 2(1) of the Punishment of Violences Act refers to the habition of all the crimes listed in each subparagraph of the same paragraph, and the existence of habituality shall be determined by comprehensively taking into account various circumstances, such as the Defendant’s age, character, occupation, environment, details of the crime, motive, method and place of the crime, time interval with the previous crime, similarity with the contents of the crime.
(2) According to the evidence duly admitted and investigated by the lower court, the following facts are recognized.
(A) The Defendant was punished for a violation of the Punishment of Violences, etc. Act or for an injury over the past several times, and the same kind of crime between the last ten years prior to the instant crime.