[살인피고사건][하집1984(3),359]
Whether it constitutes self-defense or excessive defense to kill a victim's knife by reducing the knife of the victim in response to an improper attack (negative)
In response to the victim's unfair attack, where the knife knife knife knife knife knife knife knife knife knife knife with the victim's knife, then the above act is not reasonable, and it does not constitute self-defense or excessive defense as a separate attack that goes beyond the defense range
Article 21 of the Criminal Act
Defendant
Defendant
Cheongju District Court (84Gohap10)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
One hundred fifteen days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.
However, the execution of the above punishment shall be suspended for five years from the date this judgment became final.
1. The first ground for appeal by the defendant, although the defendant had no intention to kill the victim, there was an error of law by misunderstanding the facts and affecting the conclusion of the judgment, and the second ground for appeal by the defendant and the second ground for appeal by the defense counsel was a considerable act to defend the present unfair infringement against the defendant and the non-indicted, but the court below did not recognize self-defense. However, even though the above crime of the defendant cannot be punishable because it is excessive defense under the state of fear, bad faith, entertainment, and depression, the court below did not recognize this, and there was an error of law by misunderstanding the facts or by misunderstanding the above legal principles, and even if not, it constitutes excessive defense, the court below erred by misapprehending the legal principles of excessive defense by misapprehending the legal principles of the court below which did not recognize this point, or by misunderstanding the facts, and the second ground for appeal by the defendant and the defense counsel are the second grounds for appeal by the defendant, the motive of the crime of this case, the motive of the crime of this case, the circumstance leading up to the crime of this case, and the short term of the defendant, and the defendant.
2. First of all, according to the allegation of misunderstanding the facts about the criminal intent of murder, according to the health stand, and the various evidences duly adopted by the court below after the examination of evidence, the defendant takes the knife of the knife used by the victim, and it is recognized that the victim, etc. and the chest part of the victim, etc. have caused the death of the victim due to the suspension of cardiopulmonary function by the knife heat on the left and right side, and according to the above facts of recognition, the defendant has the intention to commit murder, and therefore, the argument
Next, with respect to self-defense, uneasiness, mere excessive defense, and the victim's act of attack against the defendant and his/her her fessort will be considered as an infringement at the present level of unfair infringement as decided by the court below. However, according to the evidence above, the defendant's act of attack as stated above, in response to the above attack, it is recognized that the defendant fessorizes the victim's hand knife with several knifessss, and then, it is recognized that the knife knife with the victim's hand knife with several knifessssssor, so the above act is not reasonable and it
Then, considering the various circumstances such as the defendant's age, character and conduct, environment, criminal record, motive, means, result, etc. of the crime of this case and the circumstances after the crime, the determination of the court below's punishment against the defendant is considered to be unfair because it is too unreasonable. In this regard, the appeal by the defendant and his defense counsel is reasonable.
3. Accordingly, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the party members are again decided as follows after pleading.
The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
As seen earlier, there is no reason for both the self-defense of the defendant and his defense counsel, the excessive defense, and the simple excessive defense room under the unstable condition.
The so-called "the defendant's judgment" falls under Article 250 (1) of the Criminal Act. Since the defendant selects a limited term among the prescribed types of punishment and surrenders himself to the authorities responsible for investigation after the crime of this case, the defendant is punished by imprisonment for not more than three years within the term of punishment pursuant to Articles 52 (1) and 55 (1) 3 of the Criminal Act. In accordance with Article 57 of the Criminal Act, 115 days out of the number of detention days prior to the pronouncement of the judgment of the court below shall be included in the above punishment, but the defendant's motive leading to the crime of this case was committed, since the victim's imprisonment at middle school retired in the second year, he was unable to continue his studies. Since the victim's imprisonment at middle school was returned to her own parents, the defendant's family will be dumped with the victim's non-indicted, and the defendant was forced to dump his own knife his knife and knife his knife for the defendant.
It is so decided as per Disposition for the above reasons.
Judges O Byung-Jon (Presiding Judge) Park Dong-dong Kim-su