[존속상해존속상해피고사건][고집1977형,36]
The case holding that there is an expression of intent not to punish a person;
If the victim who was present as a witness stated that he would have been able to repent many of the defendants so far, and thus, he would be deemed to have expressed his wish not to punish the perpetrator.
Article 260 of the Criminal Act, Article 327 of the Criminal Procedure Act
Defendant
Prosecutor and Defendant
Jinju Branch of Busan District Court (76 Gohap51)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
One hundred and twenty days of 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 three years from the date this judgment became final and conclusive.
The prosecution against remaining violence among the facts charged is dismissed.
The gist of the grounds for appeal by the prosecutor is that the defendant committed a crime of temporary mistake, but the defendant was committed against himself/herself on the ground that he/she did not provide money to his/her relatives four times in prison, and such moral crime should be corrected with a more long-term reduction and correction, despite the above moral crime, the sentencing of the court below which sentenced the punishment for a short-term of eight months and a long-term of one year is excessive and unfair. The summary of the grounds for appeal by the defendant and his/her defense counsel is that the defendant committed a crime of temporary mistake, but the defendant committed a crime of temporary mistake in depth, and thus, the punishment of the court below is unreasonable.
However, according to the records, the non-indicted 1, who is the victim of the crime of injury on existence and remaining violence in this case, appears as a witness at the third trial of the court below, and the defendant is believed to have been repented, and thus, he does not wish to punish the defendant. Thus, it is obvious that the victim does not wish to punish the defendant. As to the remaining violence, among the facts charged in this case, it is obvious that the victim does not wish to punish the defendant, it cannot be punished against his intention, so there is a violation of law which has affected the conclusion of the judgment, and the judgment of the court below which recognized the defendant guilty and sentenced him, and because the crime of violence in existence was committed as concurrent crimes with the crime of injury on existence and other facts charged, it is clear that the judgment of the court below which does not require the decision of unfair sentencing is all reversed, and according to the records of the case, it is clear that the defendant and the prosecutor's allegation of unfair sentencing is the product of January 19, 19
Therefore, the judgment of the court below that sentenced the defendant to a short-term eight months of imprisonment and a long-term one year of imprisonment pursuant to the Juvenile Act cannot be maintained in this respect, since the defendant has become an adult after the sentence of the court below was sentenced.
Therefore, the judgment of the court below shall be reversed and the decision shall be rendered again against the defendant in accordance with Article 364 (2) of the Criminal Procedure Act.
(Criminal Facts)
Around 24:00 on May 19, 1976, the Defendant was a person without a certain occupation, who did not use money to the non-indicted (age 45) of the Defendant’s father at his own home room, with his own house room once the left-hand side of the Dong person’s house was drinking once, and the left-hand hand was asked once to the Dong person for about 10 days in medical treatment.
(Abstract of Evidence)
The summary of the evidence of the above facts constituting the crime acknowledged by a member is as shown in the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.
The so-called "competence" in the law corresponds to Article 257 (2) of the Criminal Code, and the defendant shall be punished by imprisonment for one year within the prescribed period of punishment. In accordance with Article 57 of the same Act, 120 days from the number of detention days prior to the sentence of the judgment of the court below shall be included in the above sentence. The defendant is the first offender in green age, the victim does not want the punishment, and there are circumstances to take into account the fact that the depth mistake after the crime is divided, so the execution of the above sentence shall be suspended for 3 years pursuant to Article 62 of the same Act.
Of the facts charged, the Defendant:
1. Samcheon-si, Samcheon-si (hereinafter omitted), around 24:00 on May 17, 1976, demanded 35,000 won from the Defendant’s father Nonindicted Party (year 45) at the Defendant’s home room, but the Defendant’s father did not have known of 35,00 won, put the buck at one time and one time on the part of the inner part;
2. Around 22:00 on May 20, 1976; (b) assaulted the Nonindicted Party at the same place to take a bath, such as ringing the Nonindicted Party, and drinking at a drinking time;
3. On May 26, 1976, at the same place around 22:00, the non-indicted's side glass was created once, and the left-hand fingers were assaulted against the existence of the non-indicted as the non-indicted as the non-indicted's free will, as seen above, and as seen above, the crime of violence on the ground of this crime is a crime of non-prosecution, and it is obvious that the victim does not wish to punish the crime. Thus, the prosecution shall be dismissed by applying Article 327 and 6 of the Criminal Procedure Act, Article 260, Article 260 (2) and (3) of the Criminal Act.
It is so decided as per Disposition for the same reasons above.
Judge Choi Jae-ho (Presiding Judge)