살인미수
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
A seized knife (No. 1) shall be confiscated.
1. Summary of grounds for appeal;
A. (1) Although Defendant (1) had no intention to kill the victim at the time of the instant crime, the lower court accepted the facts charged and sentenced the Defendant guilty. In so doing, the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.
(2) Under the influence of alcohol at the time of committing the crime, the Defendant was in a state that the Defendant lacks the ability to discern things or make decisions.
(3) The sentence sentenced by the lower court of unreasonable sentencing (four years of imprisonment) is too unreasonable.
B. The sentence imposed by the Prosecutor (four years of imprisonment) is too unfluent and unfair.
2. Determination
A. As to the Defendant’s assertion of misunderstanding the facts, the intent of murder does not necessarily require the intention of murder or planned murder, but it is sufficient to recognize or have predicted the possibility or risk of causing death of another person due to his own act, and its recognition or predictability is not definite, but it is so-called willful negligence. In a case where the Defendant asserts that there was no criminal intent of murder at the time of the commission of the crime, and only there was only the criminal intent of murder or assault, the issue of whether the Defendant was guilty of murder shall be determined by taking into account the objective circumstances before and after the commission of the crime, such as the background leading up to the commission of the crime, motive, type and method of the crime, the seriousness and repetition of the prepared deadly weapons, the degree of the likelihood of causing death, etc.
(See Supreme Court Decision 2001Do6425 Decided February 8, 2002, and Supreme Court Decision 2006Do734 Decided April 14, 2006, etc.). The following circumstances acknowledged by the evidence duly investigated and adopted by the lower court, namely, the Defendant, at the time of the instant case, was in a dispute with the victim while drinking with the victim at the home of the victim, and the victim neglected the Defendant among the disputes.