A. Error of mistake

In relation to the death of assault (not guilty part of the judgment of the court below), the defendant was able to sufficiently anticipate the occurrence of the result of the death of the victim as he lost his consciousness by assaulting the victim, such as the defendant was faced with the part of the head of the victim by pushing the victim in a scam, scambing the victim's hair, scambling the victim's hair, and damaging the victim's hand by scambling the victim's hand. Nevertheless, the judgment of the court below which acquitted the defendant of the crime of assault death on the ground that there is insufficient proof of the possibility of predictability of the defendant, thereby affecting the conclusion of the judgment due to mistake of facts.

B. Unreasonable sentencing

The punishment sentenced by the court below (5 million won of a fine) is too unhued and unfair.

2. Determination

A. As to the assertion of mistake of fact

1) The so-called crime of death by assault, etc., is a so-called as an aggravated crime of violence and death, i.e., the predictability of the result of death, in addition to the causal relationship between the consequence of assault and death, i.e., negligence, and the existence of such predictability should be strictly taken into account the specific circumstances, such as the degree of assault and response status of the victim, and the scope of predictability should be expanded by interpreting the scope of predictability. As such, Article 15(2) of the Criminal Act lacks the bounds of liability by excluding the intent to harmonize the principle of liability with the contingent aggravated crime, thereby extending criminal punishment beyond the bounds of liability (see, e.g., Supreme Court Decisions 90Do1596, Sept. 25, 199; 2009Do3002, Jun. 23, 2009). Meanwhile, the recognition of conviction should be based on evidence with probative value, even if there is no doubt that the facts charged are true enough to a reasonable doubt, it should be determined even if there is no doubt against the defendant’s.

2) Based on the legal principles as seen earlier, even if the causal relationship between the Defendant’s assault and the victim’s death is acknowledged based on the circumstances before and after the instant case and the time and place of the victim’s death, considering the following facts and circumstances acknowledged by the court below and the court below duly adopted and the evidence duly examined, it is difficult to readily conclude that the evidence submitted by the prosecutor alone could have predicted that the Defendant would die due to his own assault at the time of the instant case, and there is no other evidence to acknowledge this otherwise. Accordingly, the court below’s determination that the Defendant was acquitted of the death resulting from assault on the ground that the possibility of predictability cannot be recognized in the same purport is justifiable.

Therefore, the prosecutor's assertion of mistake is not accepted.

① On October 19, 2016, at the time of the first stop of the victim, there was no emulsion of external wound, such as cerebral blood and fals, which could be deemed as the cause of the heart suspension by the victim.

The diagnosis of the victim prepared by the F Hospital physician as of October 31, 2016 is written by the clinical presumption that the name of the disease, based on the clinical presumption, is stated as ‘the suspension of hearts successful in the human body', ‘opportunic cerebral cerebral cerebral Bribery, NOS of Smoking and in detail known'. Considering these circumstances, the victim appears to have been in the heart suspension due to low-carbon symptoms caused by the corrosion of food caused by the Defendant’s assaulting of the food (see, e.g., the Investigation Record No. 60, 90).

② There seems to be no evidence to verify whether food was likely to be planted due to the shock of the person’s shocking and shocking, and it would normally be difficult to expect that food might be dead due to the shocking of the person’s shocking from the perspective of the general public, while exceeding the person, due to the shocking of the person.

③ On October 19, 2016, the victim took a restaurant with the Defendant on drinking, and then was frightened at around 14:01, and was frightened on the floor that took place at around 14:02, and went back again. At around 14:13 on the same day, the Defendant was pushed down the victim, and the victim was faced with her head in the process. At around 14:15 on the same day, the Defendant was frightened by the victim’s head, and her head was frightd at one time. At around 14:18, the victim’s face was tightly pushed up twice by hand, and around 14:19, the victim took part in the part of the victim’s body at around 14:19. As such, the victim seems to have been faced with the victim’s head due to his/her having been deprived of his/her central hair or having been faced with the victim’s body due to an assault.

In addition, from 14:19 to 14:19, the victim showed a normal form, such as speaking the body fighting between the defendant and the restaurant operator by not later than 14:23, when the defendant gets the victim's grandchildren and gets the back back of the victim, together with the lower part of the victim.

④ In light of the fact that the Defendant and the victim did not seem to have any original relationship with each other, it is difficult to deem that the Defendant had exercised the force of force with the intent to prevent the victim from hiding or destroying on the floor, even though the Defendant committed an assault, such as booming the victim’s hair or booming her hair, etc., and that the Defendant and the victim initially met on the day of the instant case.

B. Determination on the assertion of unfair sentencing

1) Based on the statutory penalty, the sentencing is a discretionary determination that takes place within a reasonable and reasonable scope by comprehensively taking into account the factors constituting the conditions for sentencing under Article 51 of the Criminal Act, based on the statutory penalty. However, considering the unique area of the sentencing of the first instance that is respected under the trial-oriented principle and the direct principle under the Criminal Procedure Act and the ex post facto review nature of the appellate court, the sentencing of the first instance court is determined by comprehensively taking into account the factors constituting the conditions for sentencing and the sentencing criteria, etc. of the sentencing of the first instance court.

It is reasonable to reverse the judgment of the first instance court that the determination of a punishment is unfair, only in cases where there are circumstances such as deemed to have been exceeded the reasonable scope of the discretion, or where it is deemed unfair to maintain the judgment of the first instance in light of the materials newly discovered in the course of the appellate court’s sentencing examination, etc. In the absence of such exceptional circumstances, it is desirable to respect the judgment of the first instance court (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

2) Based on the foregoing legal doctrine, the lower court sentenced the Defendant to the preceding sentence on the grounds stated in its reasoning for sentencing, and there is no change in the sentencing conditions compared with the lower court’s judgment, as the new sentencing data was not submitted in this court, and in full view of the sentencing conditions indicated in the records and arguments of this case, it does not seem that the lower court’s sentencing exceeded the reasonable scope of discretion because it is too unfeasible.

Therefore, the prosecutor's assertion on this part is not accepted.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Gyeong-man

Judges Yellow-gu