[강도상해][공1992.2.1.(913),556]
The point of time for determining whether a “juvenile” under Article 60(2) of the Juvenile Act, which provides for statutory mitigation, is a “juvenile”
In Article 60(2) of the Juvenile Act, which provides for statutory mitigation, the term “juvenile” refers to a person under the age of 20 who is a “juvenile” as referred to in Article 2 of the Juvenile Act, barring any special provision, and in light of the provisions of Article 38(1) of the Juvenile Act, a person under the age of 20 must continue not only when committing the crime but also until the time of trial. Therefore, the determination of whether a “juvenile” is a “juvenile” as referred to in Article 60(2) of the Juvenile Act ought to be based on the time when a fact-finding trial is rendered.
Articles 2 and 60(2) of the Juvenile Act
A
Prosecutor
Attorney B
Seoul High Court Decision 91No2124 delivered on August 16, 1991
The judgment of the court below is reversed.
The case is remanded to Seoul High Court.
According to the reasoning of the judgment of the court below, the court below reversed the judgment of the court of first instance on the ground that the amount of punishment against the defendant is too heavy and judged again, and the above provisions cannot be applied since Article 9 of the Criminal Act and Article 59 of the Juvenile Act determine or reduces criminal responsibility at the time of the act at the time of the act, and they are considered as a responsible element for the age. Furthermore, since the character of the juvenile is formed in a special mental East state with mental and physical development, there is a high possibility of improvement, and the character of the juvenile is in a special mental East state with mental development, the newly established Article 60 (2) of the Juvenile Act, separate from Article 51 of the Criminal Act, which provides that the age of the criminal may be mitigated in consideration of the characteristics of the juvenile as a condition for sentencing. Thus, it is reasonable to view that the above provisions cannot be applied because it has become an adult majority at the time of the act as a matter of responsibility (the principle of concurrent existence with the act and liability). Therefore, considering the nature of the above provisions as a juvenile, it should be mitigated within the above provision.
However, under Article 60 (2) of the above Act, the term "juvenile" means a juvenile under Article 2 of the Juvenile Act, unless there is a special provision. The term "juvenile under Article 2 of the Juvenile Act" is defined as "person under 20 years of age," and "person under 20 years of age" as a condition for the trial, and it should be continued not only in the time of crime but also until the time of trial. This is obvious in light of the provisions of Article 38 (1) of the Juvenile Act, and it is also obvious in light of the provisions of Article 38 (1) of the Juvenile Act, and the Juvenile Act aims to promote the healthy fostering of the juvenile by emphasizing the status of the juvenile as discussed by the court below and Article 60 (2) of the Juvenile Act has also been known to this purport. Thus, the judgment of the court below as to whether it is a juvenile under Article 60 (2) of the Juvenile Act, like the court below, should be viewed as a matter of responsibility as a matter of the above character of the juvenile.
If so, the court below's decision that the defendant who had already attained majority was a juvenile at the time of the crime was sentenced to a statutory mitigation under Article 60 (2) of the Juvenile Act has committed an unlawful act that affected the conclusion of the judgment by making an interpretation of Article 60 (2) of the Juvenile Act, and therefore, it is reasonable to point this out.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)