(영문) 서울고등법원 2014. 2. 7. 선고 2013노3133 판결[강도상해(인정된죄명:준강도)][미간행]
Defendant
Defendant
Clerks (prosecutions) and Appellants (public trials)
Attorney Kim Young-chul (Korean National Assembly Line)
Suwon District Court Decision 2013Gohap144 decided October 2, 2013
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
1. Summary of grounds for appeal;
A. misunderstanding of facts and misapprehension of legal principles
Although the injury suffered by the victim Nonindicted Party (hereinafter “victim”) cannot be deemed as the injury of the crime of robbery, the lower court determined otherwise by misapprehending the legal doctrine of injury as stated in the crime of robbery and by misapprehending the legal doctrine.
B. Unreasonable sentencing
In light of the fact that the defendant reflects his mistake, the sentence of imprisonment (seven years of imprisonment) of the court below is too unreasonable.
2. Judgment on misconception of facts and misapprehension of legal principles
According to the evidence duly adopted and examined by the court below and the court below, in order for the defendant to be exempted from paying the drinking value at the time of the instant case, the fact that the defendant assaulted the victim by putting the shoulder part of the victim, breaking the bridge up to the floor by tighting the victim's shoulder, breaking the victim's neck on the body of the victim's hand, blocking the victim's neck and blocking the victim's knife with the "saling salve" knife with the victim's hand.
However, injury in the crime of robbery refers to the alteration of the victim's physical condition and disability caused to his life function. However, if the victim's body condition is extremely minor and it does not require treatment, and if the victim's daily life can be naturally cured due to the lapse of time, it cannot be deemed that the victim's physical condition was changed or that the victim's life function was hindered (see Supreme Court Decisions 201Do5925, Jan. 11, 2002; 2004Do437, Oct. 28, 2004; 2004Do437, Oct. 28, 2004). The defendant's act of using the victim's physical condition as above was not sufficient to acknowledge that the victim's physical condition was damaged by the victim's physical condition at the time of this case's alteration, and the victim's physical condition was not sufficient to receive treatment, it cannot be deemed that the victim's physical condition was damaged by the evidence of this case's 200 weeks.
This part of the defendant's argument is justified.
3. Conclusion
Therefore, the defendant's ground of appeal on mistake of facts and misapprehension of legal principles is with merit, so the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and the judgment is again ruled as follows
The criminal facts acknowledged by this court are identical to the criminal facts of the judgment of the court below, except for the alteration to "this part of the criminal facts of the court below, which read that "I exempted the defendant from the payment of the drinking value 2.60,000 won to be paid to the victim, thereby acquiring the same amount of financial benefits, and caused the victim's injury, such as the inspections and injuries of the elbow bow blus, which require approximately two weeks of treatment," as stated in the criminal facts of the court below, as stated in Article 369 of the Criminal Procedure Act."
The gist of the evidence regarding the above facts constituting the crime acknowledged by this court is as shown in the summary of the evidence of the judgment below, except for the deletion of “1. Injury diagnosis report” among the summary of the evidence of the judgment below and addition of “1. The Nonindicted Party’s statement at the trial court” as stated in the summary of the evidence of the judgment below, thereby citing it as it is in accordance with
1. Article relevant to the facts constituting an offense and the selection of punishment;
Articles 335 and 333 of the Criminal Act
1. Aggravation for repeated crimes;
Article 3 of the Act on the Punishment of Specific violent Crimes and the proviso to Article 42 of the Criminal Act.
1. Discretionary mitigation;
Articles 53 and 55(1)3 of the Criminal Act
Considering the fact that the Defendant committed the instant crime again within five months after the completion of the execution of imprisonment with prison labor due to special robbery, etc., there is no evidence to deem that the Defendant made a serious effort to recover from damage, and that the victim has maintained his/her intent to punish the Defendant because he/she failed to agree with the victim, it is inevitable to punish the Defendant with severe punishment.
However, it appears that the Defendant appears to reflect the instant crime, the amount of damage caused by the instant crime is minor and the degree of assault is not strong, and the punishment as ordered shall be determined by taking into account all the various sentencing conditions shown in the records and arguments, such as the Defendant’s age, character and conduct, family relationship, circumstances after the instant crime, etc.
The summary of the facts charged in this case against the defendant is as shown in the facts charged in the judgment of the court below, "The defendant exempted the payment of 2.60,000 won to the victim, thereby acquiring the same amount of property benefits and inflicted injury on the victim, such as the inspection of the elbows of both arms and elbows requiring treatment for about two weeks," and this constitutes a case where there is no proof of criminal facts as seen in the above paragraph (2) and thus, the defendant must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the defendant is found guilty of the above quasi-Robbery which is related to the crime,
Judges fixed-type (Presiding Judge) Kim Jong-sung
1) Although the prosecutor indicted the Defendant as “the Defendant inflicted bodily injury on the victim” as the facts charged in the instant case, the facts constituting the above assault are recognized as identical to the facts charged in the instant case, and there is no concern that the Defendant’s exercise of his right to defense may not bring about substantial disadvantages in light of the progress of the trial. Therefore, the same facts as the above facts