[살인미수(인정:업무상촉탁낙태)피고사건][하집1986(3),392]
Whether imprisonment with prison labor has been mitigated, but the suspension of qualification is added to a case where the suspension of qualification constitutes a disadvantageous change due to a change in the petition of a lawsuit.
The defendant, at the first instance court, appealed against the conviction of a suspended sentence of five years for the crime of murder at the court of first instance, and the prosecutor filed an appeal at the appellate court to change the petition of a lawsuit in the first instance, while maintaining the facts of the lawsuit for the crime of attempted murder in the first instance, and accepted the judgment of the second instance prior to the remand, and reversed the judgment of the court below, and convicted the defendant of the crime of attempted murder at the second instance, which is a preliminary litigation, and suspended qualification for a period of one year in addition to the suspended sentence for eight months.
Article 368 of the Criminal Procedure Act
Supreme Court Decision 79Do2105 Decided March 25, 1980 (Gong757No1025) (Gong757No1025) Decided 84Do1958 Decided June 11, 1985 (Gong757No1025)
Defendant
Defendant
Suwon District Court of the first instance (80 Gohap280)
Supreme Court Decision 84Do1958 Delivered on June 11, 1985
The part of the judgment of the court below against the defendant is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
One hundred and seventy days of detention days prior to the pronouncement of the judgment of the court below shall be included in the above sentence.
However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.
1. The first ground for appeal by the defendant's defense counsel did not have the awareness that the defendant, as a doctor, was living the infant, who is the object of the crime of attempted murder of this case, and there was no awareness about the crime of murdering, and even though there was no objective murder, it was an error of law affecting the conclusion of the judgment by misunderstanding the fact that the court below found the defendant guilty of the crime of attempted murder of this case. The second ground for appeal by the court below is that the sentencing of the defendant against the defendant is unfair because it was either excessive or excessive, considering various circumstances.
2. According to the records of this case, since the defendant and the co-defendants of the original trial prior to remand are indicted for attempted murder at the Suwon District Prosecutors' Office on July 16, 1980, and on July 7, 1981, the Suwon District Court sentenced the defendant to the suspended execution for 5 years and 4 years, with respect to the case of attempted murder to be committed against the defendant, etc. at the same court for 80Gohap 280, and the joint defendants of the original judgment was sentenced to the suspended execution for 4 years in 2 years, and the prosecutor filed an appeal with the Seoul High Court before remand, and remanded the case to the first instance court prior to remand for 19 years prior to remand, the court below reversed the judgment of the first instance court which convicted him of the crime of attempted murder at the same time and remanded the case to the court below for 19 years prior to remand, and the court below erred by misapprehending the legal principles as to the charges of attempted murder of the defendant, which affected the judgment of the first instance court prior to remand.
3. Therefore, a party member is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the part of the judgment below against the defendant is again decided as follows.
On Apr. 25, 1962, the Defendant established a doctor's license (trade name omitted) in Sungnam-dong (name omitted) on Feb. 11, 1975 after obtaining a doctor's license on Apr. 25, 1962, and was engaged in medical services in collusion with the co-defendants of the lower court that served as nursing assistants at the above members of the lower court's joint defendants on Jun. 15, 1980 that the Defendant, in collusion with the above members of the lower court's joint defendants at around 14:00, was commissioned on Jun. 15, 1980 to abortion from Non-Party 1 (name omitted) in Sungnam-si (name omitted) in the above members of the lower court's Sungnam-si (hereinafter referred to as "non-indicted 30 years of age"), went back to the her mother's womb, and returned to the her mother's womb immediately after receiving a commission from the above members of the lower court for delivery of the her fetus out of seven months.
The facts of the ruling shall:
1. The part of each statement and statement that correspond to the facts stated in the judgment of the court below and the co-defendants of the court below prior to the remand and the trial court prior to the remand.
1. Each protocol of examination of witness, which corresponds to the facts set forth in the judgment of the court below by Nonindicted 2, 3, 4, 5, and 6, Nonindicted 7, 8, and 9, the witness of the court prior to the remanded trial at the court of original instance, corresponds to the facts set forth in the judgment of the court
1. Each statement that corresponds to the facts indicated in the judgment of the court below among the accused as well as the co-defendants of the court below prior to the remanding of the prosecutor's protocol.
1. Each protocol of interrogation of Nonindicted 8’s suspect as to the preparation of handling affairs by prosecutor and judicial police officer, which conforms to the facts indicated in the judgment.
1. Records of verification consistent with the judgment from among the records of verification of the preparation of handling affairs by judicial police officers;
1. A statement consistent with the facts stated in the judgment among the written expert evidence prepared by Nonindicted Party 10 before remanding the case.
1. As evidence seized Nos. 2 and 3 can be recognized by comprehensively taking account of the present circumstances of the paper boxes (balls) and paths (spaths) and pents (spaths). Thus, the evidence is sufficient.
The so-called "the judgment of the defendant" means that the defendant falls under Articles 270 (1) and 30 of the Criminal Act, and the defendant shall be punished by imprisonment for 8 months within the prescribed period of punishment (the suspension of qualification shall be concurrently imposed against the defendant under Article 270 (4) of the Criminal Act, but the suspension of qualification shall not be concurrently imposed on the defendant when the suspension of qualification is imposed concurrently in this case, where the suspension of qualification is imposed more severe punishment than the first instance court, and the suspension of qualification shall not be concurrently imposed on the defendant), pursuant to Article 57 of the same Act and Article 57 of the same Act, 170 days from the number of detention days before the sentence is declared shall be included in the above punishment, and the defendant shall be included in the first crime, and there are extenuating circumstances such as the motive for the crime of this case and the fact that the mistake after the crime is divided. Accordingly, the execution of the above punishment shall be suspended for one year from the date
It is so decided as per Disposition for the above reasons.
Judges Lee Jong-chul (Presiding Judge)