살인
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for seven years.
1. The decision of the court below on the gist of the grounds for appeal (seven years of imprisonment) is too unreasonable.
2. Prior to the determination of the allegation of unfair sentencing, the court below ex officio determines the confiscation ordered by the court below.
Article 48 (1) 1 of the Criminal Code provides that articles provided or intended to be provided for criminal acts may be confiscated in whole or in part if they do not belong to a person other than the criminal or they are acquired with the knowledge of fact after the crime.
According to the records of seizure (Evidence No. 5 and No. 6 of the record), one owner of seized knife (Evidence No. 1) is indicated as a victim, and according to the records of this case, one seized knife is a knife used by the defendant at the victim's house living together with the victim, and it is not clear whether the defendant purchased the knife with his own contribution, and there is a knife as the heir of the victim and the above J expressed its intent to waive the ownership of the knife.
Therefore, the above knife shall not be confiscated because it is difficult to readily conclude that the knife is a thing that does not belong to a person other than a criminal under Article 48(1) of the Criminal Act.
However, since the court below sentenced the confiscation of the above knife one, it became impossible to escape from the reversal of the judgment below.
3. Accordingly, the judgment of the court below is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendant and the prosecutor's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.
Criminal facts
The summary of facts and evidence recognized by this court is the same as the description of each corresponding column of the judgment of the court below, and thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant Articles of the Criminal Act and the choice of punishment for the crime shall be punished by imprisonment under Article 250 (1) of the Criminal Act;