폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
1. Summary of grounds for appeal;
A. At the time of committing the instant crime, the Defendant was in a state of mental and physical loss or mental weakness due to drinking.
B. The sentence of the lower court’s unfair sentencing (three years of imprisonment, confiscation) is too unreasonable.
2. Determination
A. 1) Prior to the judgment on the grounds of appeal ex officio, the prosecutor examined the defendant's appeal ex officio, and the prosecutor applied the "Violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)" among the names of the crimes against the defendant as "special injury", and "Article 3 (1) and Article 2 (1) 3 of the Punishment of Violences, etc. Act and Article 257 (1) of the Criminal Act" in the applicable law as "Article 258-2 (1) of the Criminal Act", and "Article 258-2 (2) of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)" from "violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)" to "special injury on 2.0," and "Article 2 (2) 4 of the Punishment of Violences, etc. Act (a change of the contents of the judgment below to "hazardously weapons, etc." and thus, it becomes no longer subject to the judgment.
2) 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 that sense, according to the evidence duly adopted and examined by the court below, the owner of No. 1 of the evidence seized can be recognized as the fact that he/she is the victim G, so the above seized article cannot be confiscated unless it is owned by the defendant.
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 any further in this respect.
3) However, despite the above reasons for reversal, the defendant's mental and physical disability still remains at this court.