[Dissenting Opinion by Justice Lee Sang-hoon, Justice Jo Hee-de, and Justice Lee Ki-taik] In the above case, the case holding that it is difficult to view that the remaining and malicious means and methods of the crime are not clear that there are no circumstances to consider the motive of the crime to the extent that it is believed to be the origin of the principal nature of the defendant, and that the existence of the requirement to affirm the sentence of death against the defendant to the extent that it is the sole choice for the deprivation of life by depriving the defendant from society and is not proven without reasonable doubt, and that it is not reasonable to sentence the death penalty against the defendant on the ground that the result of the crime is very heavy, and that it is questionable whether it is reasonable to deprive the defendant of the defendant's life smoothly through the sentence of death penalty to return the responsibility for the crime to the defendant only, and therefore, the maintenance of the judgment of the first instance court that sentenced the death penalty to the defendant constitutes a case where there is a substantial reason to recognize that the sentence is extremely unfair.

[Dissenting Opinion by Justice Kim Chang-suk] In the above case, the court below maintained the first instance court which sentenced the death penalty without examining the following: although there is no doubt about the fact that the result of the defendant's crime is too serious, such as the death of five or seven soldiers and the injury of seven soldiers, the court below erred by misapprehending the legal principles on the determination of the death penalty, and failing to exhaust all necessary deliberations, without examining whether there are exceptional and special circumstances where the defendant is bound to choose the main sentence of death penalty, namely, whether there is an exceptional and special circumstance where the defendant can only choose the death penalty, and whether there is a substantial imminent and substantial threat to the general public to protect the life of the general public or to a very important public interest equivalent thereto, and whether the occurrence of a serious result may be attributable to

1. In light of the fact that the death penalty is a very cold punishment that deprives of human life and that it is extremely exceptional punishment that can be introduced by a judicial system, the sentence of death penalty should be allowed only when there are special circumstances where even anyone can be deemed justifiable in light of the degree of responsibility for the crime and the purpose of punishment. Therefore, in determining whether to impose the death penalty, the sentence of death penalty can be determined through a thorough examination of all the matters, including the offender’s age, occupation and experience, character and behavior, intelligence, education degree, growth process, family relation, relationship with the victim, motive for the crime, preparation, degree of preparation, means and method, cruel and badness, degree of consequence, victim’s number and appraisal, the depth and attitude after the crime, the degree of damage recovery, and concerns about re-offending, etc., and it can be determined that the death penalty can be justified only where it can be determined through a trial (see, e.g., Supreme Court Decision 200Do3284, Apr. 26, 2006).

Article 110 (4) of the Korean Constitution recognizes the death penalty system on the premise that the death penalty can be sentenced as a punishment by law, and the death penalty is stipulated as a statutory penalty for a number of crimes under the current legislation. However, the Supreme Court's firm position that the death penalty is allowed only when it can be justified to the extent that the sentence can be justified by strictly and thoroughly examining all the sentencing conditions that can be considered, such as the above-mentioned factors, in sentencing by a judge.

2. The summary of the crime of this case which the first instance court maintained by the court below was lawfully recognized is as follows.

A. The Defendant was suffering from bullying from bullying at the time of his school creativity, and caused the injury to murder of students singing him. After entering the military, the Defendant thought that he was pointed out by him or her because he was unable to properly perform his duties, or that he was singing or disregarding him on his own name. At around 16:00 on June 21, 2014, he thought that he was disregarding that he did not do so. At around 16:00 on June 21, 2014, on the GaOP ○-△△△△△△△△△△△, which was located at the beginning of the GOP ○-△△△△△△△△, which was located in his snick and insulting sing and insulting her external appearance, and that he was able to kill him by reporting the singing and insulting singing his ss and writing, and that he did so by disregarding bullying from the beginning of the school.

B. The Defendant determined that it would be difficult to promptly cope with the situation when considering the initial working conditions of the ○○○○○○○○○○ initially working for the Defendant, and thought that it would be possible to achieve the purpose of the Defendant’s crime if he murdered only the armed forces gathered in the traffic control office. At around 20:10 on that day, the Defendant: (a) had a brue to preferentially kill seven persons, including superior and club soldiers, who were waiting in the traffic control office around the early 20:10 on the day; (b) did not cause injury but did not die; (c) removed the brue from K-2 gun and combined the brush with Nonindicted 5’s escape to the right-hand right-hand side of the Defendant’s death by launching Nonindicted 1, who was on the front right-hand side of the Defendant’s disease; and (d) attempted to kill Nonindicted 3, who was on the front right-hand side of the Defendant’s death by launching the brush to the front of the Defendant’s death.

3. The circumstances pertaining to the sentencing of the Defendant are as follows.

A. First, there are the following circumstances that may be favorable to the Defendant.

(1) The Defendant (date of birth omitted) was a soldier of the age of 21 and 7 years at the time of committing the instant crime, who was a parent and criminal punishment, and has grown up without any particular flight at the care of his parents. There was no history of criminal punishment other than the instant crime.

(2) The Defendant, as a resistant nature, was unable to be frightly with the school-oriented districts on the ground that it was inaccurate, etc., and was bullying from the same anti-students. Accordingly, the Defendant resolved fright while killing students who bullying themselves from around the third grade of middle school. In addition, the Defendant retired from high school at the third grade of high school, obtained the qualifications for high school graduates through the examination and public notice, and entered the university.

(3) The Defendant was unable to be treated as a sergeant from some of the succeeding soldiers, and the executives and fellow soldiers did not want to hear by the Defendant, and even play a separate name that the Defendant did not want to do so. On the day of the instant crime, the Defendant was asked by Nonindicted Party 1 on the ground that the Defendant was late locked and was not cleaning.

(4) After entering the military, the Defendant thought that the Defendant’s attitude of the assistant officer, the senior officer, the motive, and the succeeding officer was bullying or bullying with the Defendant, and that the Defendant was scam and scambling the Defendant’s motive or scambling his external appearance and insulting him at the patrol log. The Defendant was able to scam and scambling the scambling of the scam and scambling of the Defendant, considering that the scambling chairman was disregarding himself, and then, the Defendant was able to kill all the scamblings of the Defendant’s living together with the scambling at the time of his entrance in the military.

(5) At the time of the instant crime, the Defendant experienced a certain impossible personality disorder due to continuous harassment experienced in the school Chang-si due to the continuous harassment, etc., and the Defendant seems to have been able to kill both the Defendant’s personality disorder and military stress.

(6) After entering the military, the Defendant was classified as a Class-A-V-V-V-V-V-V-V-V-V-V-V-V-P-P-V-V-V-V-V-V-P-P-P-P-V-P-P-P-P-

(7) Since an investigative agency, the Defendant made a statement to the effect that he/she led to the confession of a crime and reflects his/her mistake.

B. Meanwhile, there are the following circumstances to deem it inevitable to impose severe punishment due to the high possibility of criticism against the Defendant.

(1) The Defendant had an average level of intellectual ability, and was a soldier who was discharged from military service for about one year and six months at the time of the instant crime, and was discharged from military service for about three months.

(2) According to the result of the Defendant’s mental appraisal, even though the Defendant had symptoms of non-specific personality disorder at the time of committing the instant crime, the Defendant did not reach the state of mental disorder or mental retardation due to such personality disorder. In particular, the Defendant had the ability to discern things at the time of committing the instant crime, and had the ability to make decisions.

(3) The Defendant: (a) reported his scarcity and scarcity to scarking himself; (b) reported the instant crime by scarving and insulting him; and (c) did not appear to have the Defendant’s scarking to the extent that the expression of his scarf and scarf was very serious to scarf; and (d) made a similar scarf with respect to multiple scarfs other than the Defendant; (b) prior to the instant crime, the Defendant had already reported and confirmed a part of his scarfs to scarfs. In addition, more than half of the scarfs of the Defendant’s scarfs that scarfs the Defendant’s scarfs were Nonindicted 6, and the Defendant did not have his scarfs to scarfs and scarfs, or did not have his scarfs into the scarfs, thereby disregarding the Defendant’s aforementioned attitude to treat him.

(4) Meanwhile, the Defendant started to commit the instant crime with the intention of killing all of the soldiers, including the following soldiers, who had been frightened by themselves, rather than taking them as the subject of murder. In addition, in the course of committing the instant crime, the Defendant did not attempt to kill the Defendant as to Nonindicted 6 and Nonindicted 7, who was in the process of committing the crime, and rather was in close contact with the Defendant. Rather, the Defendant was killed by launching a gun to Nonindicted 2, Nonindicted 3, and Nonindicted 5, who were in close contact with the Defendant.

(5) At around 16:00 on the day of the commission of the crime, the Defendant: (a) 16:00, the Defendant reported the instant abortion and its pictures to kill all the front source; (b) laid down after sunset to 20:00 so as to achieve the purpose; (c) 10:00; (d) 20:00; and (e) 20:00; (c) 16:00; (d) 16:00; and (e) 7:00; (c) 20:00; and (d) 7:00; (c) 16:00; (d) 16:00; and (d) 20:00; (d) 7:00; and (d) 20:00; (d) 7:00; and (d) 20:00; (d) 200; and (d) 201:0; (d) 200; (e) 3:0; (e) 2); (e) 3) 3; and (e) 20.

(6) When the Defendant initially laid down a bomb in the traffic control office, some of the sources of cattle were found to have discovered a bomb, and the death did not occur because the bomb did not have much capacity to kill a bomb than that anticipated by the Defendant on the ground. Since Nonindicted 8 et al., who discovered the situation thereafter, did not take a response by Nonindicted 8 et al., who followed the death and 7 wounded, and if the Defendant committed all of the crimes as planned, there was a lot of casualties.

(7) The victims who were killed by the Defendant were young at the age of 19 to 23, and the victims who were killed are not only the age of 20 and also the age of 20, and among the five killed victims, there are a number of soldiers who were familiar with the Defendant, such as the Defendant’s appearance of a person who was killed, or who took a favorable attitude, and there are many soldiers who were not related to the preparation of a picture and a shot.

(8) In the course of committing the crime, the Defendant: (a) sent a search team more than six times during the course of committing the crime, and (b) responded to whether to train the deceased and their bereaved families, and (c) asked to arrest the victim by taking care of the police officer’s instructions; and (d) asked to talk with the police officer, and read articles related to him/her using a cell phone with his/her parents, and want to talk with the police officer; and (b) attempted to commit suicide by emphasizing the decision that he/she would be sentenced to imprisonment for life at least even if he/she think. In addition, while the Defendant stated that he/she committed a crime against the deceased and their bereaved families during the investigation and trial process, the instant case was committed in conflict with the structure of the Ministry of National Defense and the military forces, and on the other hand, the Defendant asserted that he/she was the victim of the unreasonable system and expressed that he/she was the victim of the crime by repeating his/her responsibility by force.

(9) The victims and their bereaved family members of the instant case wished to cover the Defendant’s liability for the commission of a crime against those who were killed, wounded, or killed, or wounded, and who were living together with sufferings and sufferings. There is no circumstance that the Defendant made efforts to recover from damage or to commit a crime against the victims and their bereaved family members.

4. In full view of the circumstances under which the above sentencing conditions are attached, there are special circumstances where the sentence of death penalty against the defendant can be justified in this case. The reasons are as follows.

A. The circumstance where the defendant was experienced from bullying in the course of his school creativity or had symptoms of a certain impossibility of personality disorder, etc., and the defendant was under duty of military service in the GOP environment where a considerable stress exists, and the defendant was under duty of military service in the early stage, and even if he was under duty of military service in the AOP environment where a considerable stress exists, he was classified as a class A-class-class-class-class-class-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-

However, a personality disorder is a disability caused by the abnormal growth of personality as it starts from the baby or youth without a disease, brain damage, or any other mental disorder to the time it becomes an adult. As such, stress may have an unbrupted response to stress due to such personality disorder, but it cannot be seen as a mental disorder or disease in a biological sense. As such, the phenomenon where a crime was committed due to a personality disorder or other personality defect, which makes it difficult to find out for a person with such personality defects to control his impulse and to expect compliance with the law, barring any special circumstance, cannot be said to require the person with such personality defects to take action that cannot be expected to restrain his impulse and to demand compliance with the law (see, e.g., Supreme Court Decision 2008Do9867, Feb. 26, 2009). Therefore, it is difficult to view that the Defendant’s mental disorder was hard to take into account not only an act of assault or burden on him but also an act of murdering the Defendant’s personality, such as the circumstance and vulnerability of the Defendant’s mental disorder.

B. Rather, the Defendant appears to have been supposed on the face of murdering those who are thought to be bullying. While serving in a relatively active manner for the time of injury and disease, it did not properly leave the work, in particular, after being put into the GOP, it appears that the Defendant created a situation in which he did not receive favorable treatment from those who were supposed or executive officers by supposed, supposed a computer at the cyber knowledge information room, and read supposed at the latest after being put into the GOP, and sending time so that he did not faithfully fulfill a given role. As such, the Defendant did not appear to have been supposed on the first day of the trial by supposed or supposed with a bad cycle of life such as supposed or supposed. As such, the Defendant did not seem to have been able to accept the remainder of the Defendant’s suppression in the first day of the trial without considering the fact that the Defendant did not have been sup and suped by his own view.

C. Meanwhile, as the Defendant classified as an interest-based soldier was placed in the GPO environment, which is more severe burden on the psychological basis, there is no room to regard such circumstance as due to the nature of private disease management system or military life. Moreover, it cannot be denied that the payment of life weapons, such as firearms, to the Defendant was an inevitable option for the preservation of the nation’s community. However, it cannot be considered that the payment of weapons, such as firearms, is an inevitable option for the sake of protecting the lives and safety of the people and protecting the nation’s lives and safety in the real security situation of Korea where the two Koreas are divided and militaryly replaced, leaving a young soldiers with heavy ties to protect the nation’s lives and safety, and that the conditions of their work cannot be harsh and tension, and that the provision of weapons, such as firearms, which may cause harm to the life and body of the nation’s community, should not be considered.

Furthermore, in order to perform the duty of military service, considering the shock and suffering of the victims who were seriously killed without any mistake due to the instant crime committed by the Defendant, who was at the age of 20 and out of the age of 20, or who was a volunteer soldier, the possibility of criminal criticism against the Defendant who committed the act of cruel multiple destruction, such as the instant case where he killed the Defendant’s personal vulnerability or the reality of his maximum military service, is inconsistent with the sense of responsibility and justice.

D. As seen earlier, comprehensively taking into account the motive and background of the instant crime, the contents and subject matter of the plan for the instant crime, the degree and means of the preparation of the crime, the cruelness of the crime, the cruel attitude of the Defendant’s produce, the relationship with the victims, the number of victims and the degree of the result of the damage, the suffering and pain of the victims and their bereaved family members and their families living together with the Defendant, who were the victims and their families living in the front bank or the dynamics, who were the victims and their families living in the military with the duty to defend the land and protect the lives and property of the people, and their families who faithfully perform the duty of military service due to the instant crime committed in the military with the duty to protect the lives and property of the people, it is reasonable to view that even under the premise that the sentence of death should be imposed in an exceptional and prudent manner taking into account some of the Defendant, the degree of responsibility corresponding to the instant crime, the balance between the crime and punishment, and the potential defense of the victims by preventing the occurrence of a similar crime, etc.

5. In relation to the death penalty system, there has been a pending discussion that the State should not allow the deprivation of human life by the State as long as the State assumes absolute value of life, or for the reason that the possibility of the crime of death can not be ruled out without having a substantial effect on the prevention of crime against death. Since 1998, in Korea, there has been questions about the effectiveness of the death penalty sentence (the same shall apply to cases where a military person is sentenced to death penalty) and the legislation that has abolished the death penalty system has been proposed at the National Assembly. However, there has not yet been a decision by the people and legislators with regard to the abolition of the death penalty system, and the Constitutional Court also declared that the death penalty system does not violate the Constitution in cases where the 2008Hun-Ga23 decided February 25, 2010, etc.

Although a judge's important mission is to respect human life and protect human rights, in a case where the death penalty system under the current legal system has been maintained and its constitutionality has been accepted, the sentence of death penalty is consistent with the judge's duty as a judge so long as it is judged that punishment should be punished as a maximum penalty for a crime against which death penalty is stipulated in the highest sentence of court.

6. The lower court, through a broad and detailed examination of the circumstances before and after the instant crime, thoroughly examined the premise for sentencing, and carefully examined the opinions of experts in law and medical science following the mental sentiment of the Medical Treatment and Custody Office against the Defendant, sought the victim’s bereaved family members’ opinions, given sufficient opportunity for the Defendant and his/her defense counsel to present the premise for sentencing and the conditions of sentencing, and maintained the first instance judgment that sentenced the death penalty by comprehensively taking account of all the circumstances shown in the arguments.

There is no obvious reason to acknowledge that the amount of punishment is extremely unfair, or there is no error of law in failing to exhaust all necessary deliberations on the premise of sentencing.

7. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Lee Sang-hoon, Justice Jo Hee-de, and Justice Lee Ki-taik, and a dissenting opinion by Justice Kim Chang-suk.

8. Dissenting Opinion by Justice Lee Sang-hoon, Justice Jo Hee-de, and Justice Lee Ki-taik is as follows.

In short, the majority opinion is reasonable to sentence the death penalty to the defendant, but it is difficult to agree with the following reasons.

A. The Defendant, who is performing a new duty of national defense, destroyed the military confidence and the morale of the military. If the result of such crime only is considered as a result of the crime, the Defendant’s sentence of death is not understood as having no aspect to impose the death penalty on the Defendant. However, it cannot be deemed reasonable to impose the death penalty on the Defendant. This is because, under the circumstances where the death penalty is too heavy, the victim, his/her bereaved family members, and the head of the same police station, who was performing the duty of national security, went away together with the falling, and went away in possession of a gun and live ammunition. Accordingly, even in the difficult working conditions of the lowest charging in the face of his/her duty of national security, he/she was suffering from shock, suffering from a shock and pain, and led to a significant gap in national security, thereby significantly deteriorating the military confidence and the morale of the military. This is because the Defendant cannot be held liable to the effect that the death penalty was imposed on the Defendant. This is too heavy, and that the Defendant’s life is not clearly held liable to the Defendant.

B. The sentence of death penalty is intended to achieve the purpose of punishment through the extreme and extreme measure taken by the State, which is the highest value for which the State is responsible for protecting the life of the human being. Therefore, in light of the degree of responsibility for the crime and the purpose of punishment, even when there are special circumstances justifying the sentence, it is necessary to allow the sentence only when the objective reason to recognize the sentence is clearly clarified. It is obvious that the result of the crime is very serious, and that there is no reason to consider the remaining means and methods of the crime as well as the motive for the crime to the extent that the crime is regarded as the realization of the principal nature of the defendant. Accordingly, it is obvious that the sentence of death penalty is to be imposed only in cases where it is possible to obtain the defendant from a person who has no other protective measures, in addition to the deprivation of the life of the defendant and the isolation of the defendant in society, even if he/she is able to obtain it from a society. As such, as the majority opinion stated in the Supreme Court Decision, in order to sentence the death penalty, it should be proven that there exists excessive social requirements for the crime.

C. Above all, we need to closely examine why the Defendant committed the instant crime.

(1) The record reveals the following circumstances in relation to the motive of the Defendant’s instant crime.

(A) With respect to the Defendant’s usual military service attitude, most soldiers were able to use the Defendant’s lux and primarily used the cyber knowledge information room and tried to open it to work or event, and were evaluated as being late so as to use the cyber knowledge information room at night. The head of the first place of the lawsuit evaluated as follows: “The Defendant was in a tendency to ignore the Defendant’s body and body, as he was managed as a luxe B’s interest soldier, and was fluorily divided into a little size of lux and a little size of lux, so that he was able to do so.” While working in the Defendant’s company (FEBA) from August 2013 to April 2014, 2014, the head of the soldiers who was in charge of the luxal was unable to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been her.

(B) In the course of investigation and public trial, the soldiers who worked as the Defendant stated to the effect that the Defendant was unable to be properly treated as an appointed soldier, such as the Defendant’s neglect of her duty or her former soldier’s disease, even though many soldiers stated, the name of the Defendant’s first soldier’s disease at the ○○○ (in spite of a large number of people’s statement, it is deemed inappropriate

(다) 소초원들은 피고인을 ‘슬라임’, ‘할배’, ‘이무도비누스’, ‘라면전사’, ‘노인’ 따위의 별명으로 부르기도 하였고, ○○-△ 초소 등의 순찰일지에 그려진 그림에서 왜소하고 탈모로 머리숱이 적으며 평소 라면을 좋아하던 피고인을 묘사하면서, 머리숱이 없는 것으로 형상화하거나, 왜소한 것을 빗대어 갈비뼈가 드러나도록 그리거나, 늦잠을 자는 모습을 그리거나, 머리숱이 없고 가슴 부분에 갈비뼈가 드러나며 배가 볼록 튀어나온 모습을 형상화하고는 그림 옆에 ‘라면전사’, ‘라면뱃살’이라고 기재하기도 하였다. 피고인의 특징이 반영되어 있는 위와 같은 그림 대부분은 바로 밑의 후임 등 피고인의 후임병들에 의하여 작성되었다. 이러한 그림 옆에 누군가 ‘잘생김’이라고 기재하자 그 옆에 ‘누구인지 못생김’이라고 기재하기도 하였고, 그 외에도 피고인을 희화화한 그림 옆에 ‘일로와 맞장 뜨자’, ‘6. 10. 말 놓는 날’(피고인의 후임이자 이 사건 범행으로 사망한 병사가 쓴 것으로 보인다), ‘병신’, ‘ㅂㅅ’(병신을 의미하는 것으로 보인다), ‘ㅂㅅㅇㅌㄱ’(병신오탁구를 의미하는 것으로 보인다) 등의 기재가 있었다.

(D) The Defendant stated to the effect that “The Defendant, as a result of the so-called personal nature test conducted before being placed at the ○○○○○○○○○○○○○, classified it as a Class-A-B-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-

(E) The psychological evaluation report on the accused in the course of the investigation states that “the accused is considered to have experienced decentralization for those who were unfairly treated to himself. The negative sentiments experienced by the accused appears to have been maintained while experiencing the negative relationship that had been unable to properly cope with before the instant crime before the instant crime and experiencing the negative relationship. Such adaptation problem seems to have an impact on the Defendant’s management and deepening of the cognitive vulnerability which could not adequately express his sentiments. Such cognitive vulnerability is deemed to have caused internal factors affecting the Defendant to commit the instant crime.”

(F) The result of the Defendant’s mental appraisal in the trial process is as follows. “The Defendant’s mental perception of the Defendant is as follows: “The Defendant’s bullying, play, and scarcitys are suffering from damage to people. There is no mental disorder, but there is anger in the present situation. The Defendant is likely to have expressed aggressive behavior explosively without controlling decentralization and hostile scarcitys due to extreme stress, where the Defendant was found to have neglected, insulting, or destroyed another person’s emotional distress. However, it is highly likely that the Defendant’s personality disorder, namely, a personality disorder that does not meet any specific personality diagnosis criteria but does not fully meet the diagnosis criteria, and such personality disorder does not seem to fall under the case where the Defendant was aware of the function of the Defendant’s occupation or personality disorder in the past due to the creation of an objective stress in the military area (e.g., the social or occupational domains).”

(2) In light of the above circumstances as well as the Defendant’s past growth process pointed out by the Majority Opinion, it appears that the Defendant had a tendency to be explosively expressed through a sudden aggressive behavior on the ground of severe stress, such as decentralization and scarcitys when he was neglected, insulting, or destroyed due to the continuous bullying experience of the juvenile flag. Although the Defendant was appointed, there was room to deem that the Defendant was undergoing bullying within the beginning, such as other soldiers, in particular, disregarding them without being treated from the following soldiers, and disregarding them. Accordingly, it is difficult to readily conclude that the Defendant reported the pictures and comments immediately before committing the instant crime, and thus, it is difficult to deem that there was no possibility that the Defendant’s personality might have been exposed to the Defendant’s aggressive expression in the first place of his aggressive behavior, and thus, it is difficult to deem that there was no possibility that the Defendant’s personality might have been expressed in the process of the instant crime.

D. Since the Defendant had an armed riot and been on the duty of guard, it can be deemed that the Defendant’s use of firearms and bombs, which had been in possession of the Defendant’s possession by bullying and bullying within the front time, lost her sexual judgment power, and caused the instant crime by using the firearms and bombs as it is, as in the time of original judgment, it cannot be readily concluded that the Defendant had an intention to kill other bombs in advance and prepared and executed the instant crime under the plan. Furthermore, the judgment of the court below is without any objective basis. Furthermore, it cannot be said that the Defendant complained of the Defendant as the cause of the instant crime, such as illegal bullying or bombs, etc., of himself, cannot be said to be the ground for appeal by the Defendant, which led to the Defendant’s confession of the crime from an investigative agency to the original trial, to the victims and their bereaved family members, and that the Defendant did not have any negative attitude to commit the crime. It cannot be said that the Defendant attempted to arrest the Defendant immediately before the sentence to commit suicide.

The Defendant was 21 years old at the time of committing the instant crime. There are no elements of sentencing that can affirm the sentence of death, in light of the Defendant’s occupation, career, educational degree, growth process, family relationship, and existence of criminal records. Unless there exist clear grounds to affirm the risk of recidivism, the Defendant’s mental sentiment of the Defendant in the process of the instant crime, merely results in the Defendant’s personality inclination presumed to have been an opportunity to commit the instant crime in the process of the trial, that there was no special treatment method and that the Defendant cannot expect the high level of treatment effect due to a mental diagnosis, etc., without permission, on the ground that the risk of recidivism has been affirmed.

E. As can be seen, it cannot be deemed clear that the cruel and maliciousness of the means and methods of crime is to be considered to be the origin of the Defendant’s identity, and there is no reason to consider the motive for the crime. The existence of the requirement to affirm the death sentence against the Defendant to the extent that it is the sole choice for the deprivation of the Defendant’s life to the extent that it can be understood as the Defendant’s conviction in society, even if, by depriving the Defendant’s life, it does not appear that the existence of the requirement to affirm the sentence of death against the Defendant was proven without reasonable doubt. As the result of the instant crime is very significant, it cannot be said that the sentence of death penalty against the

From the beginning, the Defendant appears to have been unfit for performing the duty of boundary at the lowest charging room, which was conducted under the strong tension with firearms and shots. If the Defendant was put into the boundary service at the lowest charging room conducted under strict regulations and order among soldiers, it could sufficiently be anticipated that not only the lives of other soldiers but also the lives of the Defendant would cause trouble to their own lives, and any accident may occur in the country. Although the psychological examination conducted before the highest charging room, which was classified as Class A-V-V-related disease that was inappropriate for the highest charging room due to the risk of suicide, etc., as a result of artificial re-inspection conducted before the highest charging room, it would be difficult to view that the Defendant was deprived of his/her personality by committing the crime of this case, which could not be found to have been found to have been significantly unreasonable. Accordingly, it is difficult to deem that the judgment of the court below that there was a concern that the Defendant’s life penalty of this case could not have been unduly expressed by aggressive action, and that there was a concern that the Defendant’s death penalty of this case would not have been unlawful.

As above, we express our dissent with the Majority Opinion.

9. Dissenting Opinion by Justice Kim Chang-suk

A. Article 41 of the Criminal Act provides for death penalty, imprisonment with or without prison labor, etc. as a type of punishment. Article 51 of the Criminal Act provides that “The age, character and conduct, intelligence and environment of the offender, relationship with the victim, motive, means and consequence of the crime,” etc. shall be taken into account in determining punishment.

In light of the fact that the death penalty is an extreme sentence to deprive a person of his/her life, the Supreme Court has previously requested to thoroughly examine all the matters that are the conditions for sentencing, including the offender’s age, occupation and career, character and behavior, character and conduct, degree of education, growth process, family relationship, existence of criminal records, motive for the crime, existence of prior plan, the degree and method of preparation, the degree of preparation, means and method, the seriousness of the result, the number of victims and the appraisal of damage, the depth and attitude of the crime, reflectness and attitude after the crime, the degree of damage recovery, and concerns of recidivism (see, e.g., Supreme Court Decision 2010Do4347, Jun. 10, 2010).

Based on these legal principles, the majority opinion, based on comparison of the circumstances favorable to the defendant and the circumstances unfavorable to the defendant, found that the sentence of the defendant could be justified in the instant case.

However, for the following reasons, we cannot agree with the Majority Opinion that the lower court’s measure of maintaining the first instance judgment that sentenced the death penalty to the Defendant is justifiable.

B. Article 103 of the Constitution provides that “The legal officer shall judge independently according to his conscience and in accordance with the Constitution and laws,” thereby declaring the principle that the exercise of jurisdiction must always conform to the spirit of the Constitution. This shall be subject to the application and interpretation of Article 51 of the Criminal Act.

However, among the types of punishment stipulated in Article 41 of the Criminal Act, the death penalty, such as imprisonment, raises constitutional issues in that it cannot be easily harmonized with the provisions of fundamental rights prescribed by the Constitution, and accordingly, if a judge intends to choose the death penalty among the statutory penalty, such constitutional issues should be raised.

The decision of death penalty should be noted in mind that the decision of death penalty results in unconstitutional consequences unless it is extremely exceptional for the following reasons. This does not conflict with the view that our Constitution expresses that the death penalty system is not denied through Article 110(4) or that a number of penal provisions stipulate the death penalty as a statutory penalty, and it does not mean that a judge should directly consider constitutional standards in the course of examining individual sentencing cases.

(1) A life cannot be restored smoothly if it is lost, and is a critical and prudent part of human dignity that cannot be altered in this world. Even if there is no explicit provision in the Constitution, the right to such life is a aggressive and natural legal right based on the nature and purpose of human survival and existence, which is a fundamental right among fundamental rights that functions as a premise of all fundamental rights provided in the Constitution (see Constitutional Court Order 95HunBa1, Nov. 28, 1996). In addition, the “human dignity and value” as provided in Article 10 of the Constitution, which can be deemed as the basic ideology for the ultimate purpose of all fundamental rights, may not be considered separately from the above right to life. Accordingly, it cannot be said that the State, which has “the fundamental human rights of an individual,” as provided in Article 10 of the Constitution, selects the right to life of an individual by selecting the death penalty and has an obligation to guarantee it, in principle, does not violate the Constitution.

(2) In addition, the right to life may not be distinguished from the essential part, and the limitation on the right to life is bound to be an essential infringement, i.e., deprivation of the right to life. Therefore, the freedom and rights of the people under Article 37(2) of the Constitution may be limited by law only when necessary for national security, maintenance of order, or public welfare, and as long as such restriction does not infringe on the essential contents, the right to life does not constitute a fundamental right of the nature that can be generally restricted based on law.

(3) As such, in principle, deprivation of a State’s life by the State shall not be deemed as either mother or permissible. However, even if the right to life is an urgent and inevitable circumstance to protect any more important constitutional value, there may be cases where restriction may be necessary. Cases where a soldier conducts a combat act by hiding a person to defend against a present and imminent intrusion threateninging the lives of the general public may fall under such cases.

However, the death penalty is an intentional and planned deprivation of the individual’s life that has been investigated and tried after the commission of the crime. The death penalty for the murderer does not lead to the victim’s life. It is also difficult to view that an imminent infringement of the general public’s life or grave public interest equivalent thereto may be defense through the death penalty. In other words, even if there are exceptional cases where restriction on the right to life may be possible, it cannot be generally deemed that the criminal selects the sentence of death penalty against the criminal.

(4) On the other hand, it is difficult to see that the death penalty has fulfilled its function when it is a response report, general prevention and special prevention.

First of all, the death penalty is deprived of life, and no special prevention may be contributed to the improvement and edification of the criminal. In addition, in order to prevent an extreme crime, there may be a position that the imposition of the death penalty against the criminal is necessary to protect his/her right to life, i.e., to protect his/her potential victim. However, it is not clearly revealed that the death penalty system contributes to the general prevention of a serious crime through fear of death. Rather, the effect of the prevention of a serious crime should be deemed as not allowing the State to take the life of the individual as its tool for an abstract public interest purpose that has not been proven.

Ultimately, the death penalty can only be deemed to have functioned as a response report to extreme crimes and functioned to permanently isolate the relevant criminal from society. However, given that today’s response report through punishment cannot be seen as a response report to the infringement of another person’s life or important legal interests corresponding thereto, there is no logic that the infringing person’s life must be deprived as a response report to the infringement of other person’s grave legal interests. In addition, the permanent isolation of the criminal who is at risk of recidivism in society can achieve its purpose by means of a punishment other than the death penalty.

(5) Even if the death penalty system has a certain degree of function of the general prevention by its superior power, it shall be effective as a punishment in order to achieve such effect. However, within six months after the sentence of death penalty is finalized under Articles 463, 465(1) and 466 of the Criminal Procedure Act, the Minister of Justice orders the execution of capital punishment and orders to execute it within five days after the issuance of the order (in the case of military personnel, the same provision shall apply to the execution of the order under Articles 506, 508(1) and 509 of the Military Court Act). However, in Korea, the execution of capital punishment has not been executed after December 30, 1997, and it is actually classified from international human rights organizations such as the International Amnesty Commission, etc. as a means to achieve the legislative purpose.

(6) Punishment shall be based on the responsibility and proportional liability. In other words, the death penalty is against the principle of accountability. In other words, the reason for an extremely malicious crime that may be considered as a death penalty is not only an individual’s maliciousness, but also an environmental factor of the State and society. However, it is difficult to view that the State, which is not liable for the result of such a crime, imposes the responsibility on an individual by the death penalty that is the punishment that is the punishment that is the punishment that is the punishment that is the punishment that is the crime that is the punishment that is the punishment that is the punishment that is the crime that

C. Therefore, in selecting a death penalty among the statutory penalty that a judge may choose, above all, in mind, may result in unconstitutional consequences, a thorough examination should be conducted as to whether the current situation where it is inevitable and inevitable to choose the death penalty in order to protect the lives of the general public or to protect the very important public interest corresponding thereto, and even if the crime is extreme and serious, whether it can be attributable to an individual’s responsibility.

D. Examining the instant case, there is no room for doubt as to the fact that the result of the Defendant’s instant crime is too serious, such as the death of five or seven soldiers, due to the instant crime, and the injury of seven soldiers. However, in light of the foregoing legal doctrine, the lower court should have deliberated on the following: (a) whether there is an exceptional and special circumstance that does not have to choose the extreme form of death penalty against the Defendant in this case; (b) whether there is a substantial threat to the protection of the lives of the general public or to the very important public interest equivalent thereto that should prevent the Defendant from being deprived of his/her right to life; and (c) whether the occurrence of such serious result may only be attributable to the Defendant.

Nevertheless, the court below maintained the first instance court that sentenced the death penalty as to the facts charged in this case, taking into account the following circumstances: (a) the Defendant’s harassment and bullying cannot be deemed to be considered as the motive for the crime; (b) the process of committing the crime in this case is brut and brut; (c) the Defendant’s attitude after committing the crime was bad; and (d) there was considerable doubt as to whether the Defendant was against the truth. This judgment of the court below did not err by misapprehending the legal principles on the determination of death penalty, thereby failing to exhaust all necessary deliberations. Therefore, the court below should be reversed.

For the foregoing reasons, we express our dissent from the Majority Opinion.

Justices Lee In-bok, Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Kwon Soon-ok (Presiding Justice)