상습폭행
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, the above punishment for a period of two years from the date this judgment became final and conclusive.
1. The sentence imposed by the lower court (six months of imprisonment) on the summary of the grounds for appeal is too unreasonable.
2. Determination
A. ex officio, among the facts charged in the instant case, “The Defendant, other than the Defendant, also from September 1, 2016 to January 31, 2017, was at the kitchen of the said restaurant once a week, at the time of the victim’s head, etc. by the said method.
We examine the issue of “.........”
B. Article 254(4) of the Criminal Procedure Act provides that “The entry of a public prosecutor’s office must specify the time, place, and method of the crime.”
As stated in the above, the purport of the law, which stipulates the time, place, and method of a crime, to specify the facts charged, is to limit the scope of the trial to the court and facilitate the exercise of the defense right by specifying the scope of the defense of the defendant. As such, the prosecutor must consider the above three specific elements and state specific facts that meet the requirements for the constituent elements of the crime so as to distinguish the facts from other facts (see Supreme Court Decisions 2010Do16361, Feb. 10, 201; 200Do3082, Oct. 27, 200, etc.).
In light of the above legal principles, this part of the facts charged provides that the date and time of the crime, method of the crime, and frequency of the crimes are generally indicated, and in particular, “the above method” in relation to the method of the crime is indicated. However, since the form and reason of each of the crimes committed prior to this part of the facts charged are completely changed, it cannot be entirely specified when the defendant specifically assaults the victim by any means.
Therefore, even if the facts charged relate to habitual assault, which is a single comprehensive crime, it does not constitute a specific fact-finding, and thus does not meet the requirements prescribed in Article 254(4) of the Criminal Procedure Act, and this part of the indictment procedure is null and void in violation of the provisions of the Act.