폭행치상
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. misunderstanding of facts or misunderstanding of legal principles is merely a passive defense in the course of setting up against the assault by the victim, and there is no likelihood of harming the victim by exceeding the victim.
Nevertheless, the judgment of the court below which convicted the Defendant of the facts charged of this case is erroneous in the misapprehension of legal principles as to self-defense or legitimate act, which affected the judgment.
B. Preliminaryly unfair sentencing, the sentence imposed by the court below (5 million won of a fine) is too unreasonable.
2. Determination
A. According to the evidence duly adopted and examined by the lower court regarding the assertion of misunderstanding of facts and misapprehension of legal principles, the fact that the Defendant and the victim walkeded with each other by being tightly pushed into force, and the fact that the victim was suffered from the abundance in the process can be fully recognized.
In addition, for a certain act to be recognized as self-defense, it must be reasonable for the act to defend the present unfair infringement against one’s own or another’s legal interest. Therefore, it is not recognized as self-defense against an unlawful legitimate infringement, and whether the act of defense is socially reasonable should be determined by taking into account all specific circumstances, such as the type, degree, method of infringement, and the type and degree of legal interest to be infringed by the act of defense, etc.
(1) The Defendant’s act constitutes a self-defense or a legitimate act, when considering the situation at the time of the instant crime, the degree of the Defendant’s assault committed by the victim, and the degree of the victim’s injury, etc. (see, e.g., Supreme Court Decision 2003Do3606, Nov. 13, 2003).
Therefore, we accept all the defendant's arguments on mistake of facts or misapprehension of legal principles.