폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
1. Summary of grounds for appeal;
A. At the time of the instant crime, the Defendant was in a state of mental disorder or mental disability due to drinking.
B. The lower court’s sentence of unreasonable sentencing (three years of imprisonment, confiscation) is too unreasonable.
2. Determination
A. Prior to the judgment on the grounds for appeal ex officio, Article 48(1)1 of the Criminal Act provides that “The articles provided or intended to be provided to a person other than the criminal may be confiscated in whole or in part, unless they belong to the ownership of a person other than the criminal, or are knowingly acquired by a person other than the criminal after the crime.”
However, according to the evidence duly admitted and examined by the court below, the owner of the evidence No. 1, which was seized, can be acknowledged as the fact that he/she is the victim G, so the above seized article cannot be confiscated unless the defendant owns it.
Nevertheless, since the court below confiscated the above confiscated articles from the defendant, the court below erred by misapprehending the legal principles on confiscation, which affected the conclusion of the judgment, thereby making it impossible to maintain it further.
However, despite the above reasons for ex officio destruction, the defendant's argument about mental disorder is still subject to the judgment of this court, and this is examined.
B. According to the evidence duly admitted and examined by the court below as to the assertion of mental disorder, the defendant is deemed to have a drinking condition at the time of each of the crimes of this case, but in light of various circumstances such as the circumstances leading to the crime of this case, the means and method of the crime, the behavior of the defendant before and after the crime, and the circumstances after the crime, the defendant did not have the ability to discern things or make decisions due to drinking.
Since it seems that the defendant was in a state or weak condition, the above assertion by the defendant is rejected.
3. Accordingly, the court below's decision on the defendant's assertion of unfair sentencing has a ground for ex officio reversal.