[특수강도·특정범죄가중처벌등에관한법률위반(절도)·폭력행위등처벌에관한법률위반·미성년자약취][공2003.4.1.(175),870]
[1] In a case where the defendant appealed only an unreasonable sentencing on the judgment of the court of first instance as a ground for appeal, whether the appellate court may make a mistake of facts or misapprehension of legal principles as to the judgment of first instance as the
[2] The legislative intent and legal interest of the crime of abduction of a minor, and whether the crime of kidnapping a minor is established in a case where the defendant, under the consent of the minor, moves the minor to de facto control by infringing on his father's custody right (affirmative)
[1] The defendant appealed the judgment of the court of first instance on the sole ground of unfair sentencing as the grounds of appeal and dismissed the appeal. In such a case, the defendant may not appeal the judgment of the court of first instance as the grounds of appeal that there was an error of mistake of facts or
[2] The legislative purpose of the crime of kidnapping a minor under Article 287 of the Criminal Code is to punish the act of kidnapping the minor in order to protect the minor with insufficient mental and physical development and rich experience. Considering the fact that the protective custody rights of the guardian and supervisor as well as the freedom of the minor are protected, the crime of kidnapping a minor is established as long as the defendant and the accomplice infringed the father's care and custody rights of the minor who protected and supervised the minor, thereby moving the female to their own de facto control, and even if the minor's consent was obtained, the establishment of the crime is not changed.
[1] Article 383 of the Criminal Procedure Act / [2] Article 287 of the Criminal Act
[1] Supreme Court Decision 92Do3256 delivered on February 9, 1993 (Gong1993Sang, 1031), Supreme Court Decision 94Do2134 delivered on February 3, 1995 (Gong1995Sang, 1195), Supreme Court Decision 95Do2072 delivered on December 12, 1995 (Gong196Sang, 454), Supreme Court Decision 96Do2076 delivered on November 8, 1996 (Gong196Ha, 364) (Gong201Sang, 1305)
Defendant
Defendant
Attorney Cho Jae-hee
Seoul High Court Decision 2002No2476 delivered on November 27, 2002
The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence.
In light of the records, the defendant appealed the judgment of the court of first instance on the sole ground of unfair sentencing as the grounds for appeal, and the appeal was dismissed. In such a case, the defendant cannot be deemed as the grounds for appeal that there was an error of mistake of facts or of misunderstanding of legal principles as to the judgment of the court of first instance (see Supreme Court Decision 94Do2134, Feb. 3, 1995, etc.) and the evidence cited by the judgment of the court of first instance in light of the records, the crime of abduction of minors and the crime of violation of the Punishment of Violence, etc. Act on Intrusion into Residence and Infringement into Residence, etc. is all acknowledged. In this regard, the court below's measures which maintained the judgment of the court of first instance which convicted the defendant of the crime in this part of this case are just and acceptable,
In addition, the legislative purpose of the crime of kidnapping a minor under Article 287 of the Criminal Act is to punish the act of kidnapping a minor with insufficient mental and physical development and to protect the minor with poor fear and experience, and considering the fact that the protective custody right of the guardian and supervisor is also protected in addition to the freedom of the minor, the crime of kidnapping a minor is established as long as the defendant and his accomplice violated the care and custody right of the father, the non-indicted 14 years old, who protected and supervised the victim (the victim, the non-indicted 14 years old), and transferred the female to their actual control. Even if the victim consented, the establishment of the crime of kidnapping is not changed.
On the other hand, in this case where the defendant was sentenced to a maximum of four years of imprisonment and a short of three years of punishment, the reason why the amount of punishment is inappropriate is not a legitimate ground for appeal.
Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Jin-hun (Presiding Justice)