In a case where Party A’s mother, who was 30 months after birth, was indicted for murdering Party B’s head, etc. on several occasions on the ground that Party B conspiredd with Party B and his father Byung, and Party B did not hear the horse well, and Party B her head, etc., on the ground that Party B took her mother’s house, the case holding that Party C aided Defendant B’s murder by omission, etc., which was presumed to have the possibility or risk of death due to Defendant B’s act of her intent, but did not restrain Defendant B’s act of her head, etc.

In a case where Gap's mother, who was 30 months after birth, was prosecuted for murdering Gap's head, arms, legs, legs, body leg, etc. on the ground that Eul's head and father Byung conspireds with Eul's mother who was 30 months after birth and did not listen to the horse well, and Gap's head and father did not look at the horse, the case holding that Gap's act of aiding and abetting Eul's head and aiding and abetting Eul's death was difficult to view that Eul's act of aiding and abetting Eul's head and aiding and abetting Eul's death was an objective element of the crime of aiding and abetting Eul's act of aiding and abetting Eul's death without considering the progress of the crime of murder and the degree of the act of aiding and abetting Gap's body and possibility of death, etc., and it is difficult to view that Gap's act of aiding and abetting Eul's head and aiding and abetting Eul's death was an objective element of the crime of aiding and abetting Eul's act of aiding and abetting Eul's head, and it did not meet the objective element of the crime of the crime of murder.

Articles 30, 32, and 250(1) of the Criminal Act; Article 913 of the Civil Act; Article 5 of the Child Welfare Act

Defendant and Appellant for Attachment Order 1

Defendant 2

Defendants and Prosecutor (Provided, That in the case of prosecutor, as to Defendant 1’s request for attachment order)

Kim Jong-Un et al.

Attorney Lee Sung-sung

Ulsan District Court Decision 2015Gohap180, 2015 Jeon high-ranking32 decided November 20, 2015

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for twenty years and by imprisonment for six years.

To order the Defendants to complete the child abuse treatment program for 120 hours each.

Two seals (No. 1) shall be confiscated from Defendant 2.

The request for the attachment order of this case is dismissed.

1. Summary of grounds for appeal;

(a) Defendant and requester for an attachment order;

The punishment sentenced by the court below against the defendant and the requester for attachment order (hereinafter referred to as the "defendant") (the completion of a child abuse treatment program with imprisonment of 20 years and 120 hours) is too unreasonable.

B. Defendant 2

1) Although Defendant 2 did not intend to commit murder as well as the intent to jointly process Defendant 1’s murder, it does not constitute a co-principal as described in the facts charged, the lower court convicted Defendant 2 of the facts charged of murder on the grounds as stated in its reasoning. The lower court erred by misapprehending the legal doctrine on mistake of facts or murder, which affected the conclusion of the judgment.

2) The punishment sentenced by the lower court to Defendant 2 (a prison term of 10 years, completion of a child abuse treatment program of 120 hours, confiscation) is too unreasonable.

(c) Prosecutors;

Although there is a risk of recommitting Defendant 1’s murder, it is unreasonable for the lower court to dismiss Defendant 1’s request for attachment order (including Nonindicted 1 and the victims’ family members’ access prohibition order and request for completion of murder treatment program).

2. Determination

A. Ex officio determination

In the judgment of the court below, prior to the determination of the defendants' grounds for appeal against the defendant as to the prosecuted case, the prosecutor did not immediately restrain the defendant 1 from continuing assaulting the victim's head by the above smuggling, and the part of "the defendant 2 did not check the victim's head by the defendant 1, and did not check the victim's violence pursuant to Article 913 of the Civil Code and Article 5 of the Child Welfare Act and protect the victim by preventing the defendant 1 from assaulting the victim's head head by the above smuggling, and instead, the defendant 1 did not keep the victim's body continuously assaulting the victim's head body by the above smuggling, and the defendant 2 applied for permission for change of the bill of amendment to the bill of amendment."

Meanwhile, since the Defendants’ remaining crimes are concurrent crimes under the former part of Article 37 of the Criminal Act with the revised facts charged as seen above, they should be sentenced to a single sentence within the scope of punishment aggravated by concurrent crimes pursuant to Article 38(1) of the Criminal Act, and the part of the judgment below on the Defendant case cannot be maintained any longer.

In addition, where the part of the defendant's case against the defendant 1 is reversed, the part of the case for the attachment order against the defendant 1 to be tried together with the same and sentenced simultaneously cannot be reversed.

However, despite the above reasons for ex officio destruction, Defendant 2's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court, and this is examined.

B. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 2

1) Summary of this part of the facts charged

At around 17:10 on June 2, 2015, Defendant 1 went to the ○○○ Child Care Center located in Ulsandong-gu, Ulsan-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu, but the victim reported his her her her son himself to the classroom, " she does not want to go to his her house" and she does not hear his son. At the above child care center-dong-dong-dong-dong-dong-dong-dong-dong ( Address omitted), Ulsan-dong-dong-dong 4 (△△△△△△△), where the son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's residence.

Defendant 1:45 on the same day, at around 17:45, 17:45 on the ground that the victim, who entered the house on the front side of the entrance and exit door, was frightened twice again on the part of the victim, and thereafter, the victim was able to remain her seat. On the same day, at around 18:30 on the same day, Defendant 1 got the victim who continued to sit in front of her right side, making the victim her seated, and she was frighten, but the victim did not fright while she was frighten, and she was frightened, she was frightened on the part of the victim, and she was frightened at the bar, and she was frightened with knee for about 1:5 meters of the victim’s body, and she was frighted with a thickness of 2:5 meters of the victim’s body, and she was frighted with the remaining part of the victim’s body.

At around 20:00 on the same day, Defendant 1: (a) returned home to the same household, Defendant 2, her husband, and her husband were drinking together; (b) was divided into Defendant 2 and dialogues with regard to the circumstances in which the son caused the son, and (c) took the son, and (d) took the son, the son, and the son, to sit in front of the right side of Defendant 1; and (b) took the son’s head 3 to 4 times using the string strings, as above, repeated actions were conducted 2 to 3 times.

피고인 2는 피해자의 친부로서 민법 제913조 및 아동복지법 제5조 에 의하여 피고인 1의 폭행을 제지하고 피해자를 보호하여야 함에도 불구하고 위와 같이 피고인 1이 위 밀걸레 봉으로 피해자의 머리 부위를 계속해서 폭행하는 것을 바로 옆에서 지켜보면서도 이를 제지하지 않은 채, 오히려 위와 같은 피고인 1의 폭행을 견디지 못하고 아버지인 피고인 2에게로 다가온 피해자에게 “네가 잘못했으니 맞아야 된다.”, “이 정도 맞아서 죽진 않아.”라고 말하며 피해자의 머리 부위를 손으로 5~6회가량 때리며 피고인 1이 있는 곳으로 밀쳤고, 그 뒤 피고인 1은 위 밀걸레 봉이 움푹 들어가고 휘어질 정도로 강한 힘으로 피해자의 머리, 팔, 다리, 몸통 등 전신을 3~4회가량 때리는 행동을 7~8회가량 더 반복하였다.

As a result, the Defendants conspired from around 20:00 on June 2, 2015 to about 23:00 on the same day, on the grounds that the victim took a house without hearing the horses for about 3 hours, and the victim took a house, the Defendants fully aware that the victim’s head, arms, legs, body boxes, etc. using the above smuggling, which is a dangerous object, would be able to die if the price of telegraph, such as the victim’s head, arms, legs, body leg, etc., is 30 to 40 times. As above, the Defendants got 30 to 40 times the entire head, etc. of the victim.

Ultimately, at around 23:56, Jun. 2, 2015, the Defendants conspired to kill the victim by causing the victim to die from a wide range of poppy transfusion and multi-scopic shock in the emergency room of the Ulsan-gu U.S. University Hospital located in Ulsan-gu, Ulsan-gu.

2) The judgment of the court below

The lower court found Defendant 2 guilty on the charges of murdering Defendant 2, on the ground that, in full view of the circumstances acknowledged by each evidence in the original trial, Defendant 2 was sufficiently aware of the risk of the victim Nonindicted 2’s death due to Defendant 1’s murder, and on the ground that Defendant 2’s head, etc. was found to have been at the time of Nonindicted 2’s escape requesting assistance, the lower court found Defendant 2 to have been sufficiently recognized.

3) Determination of the immediate deliberation

A) A joint principal offender under Article 30 of the Criminal Act commits a crime jointly by two or more persons. In order to establish a joint principal offender, it is necessary for the joint principal offender to commit a crime through functional control by a joint doctor, which is a subjective requirement, with the intention of joint processing and objective requirements. The intent of joint process is insufficient to recognize and refrain from committing another person’s crime, and to accept it without restraint. It is one of the joint principal offenders to commit a specific criminal act with the intent of another’s act (see Supreme Court Decision 2001Do4792, Nov. 9, 201, etc.). Therefore, in order to determine the joint principal offender’s establishment, the relationship of mutual use based on the intent of joint processing should be proven to the extent that there is no reasonable doubt by examining the status and role of each actor through the entire process of realizing the crime, the solicitation of other actors, etc.

On the other hand, since the nature of the co-principal is in the functional control by division of roles, the co-principal is in the functional control by the co-principal, while the co-principal is in the functional control by the co-principal, the relationship between the two are distinguished in that there is no control over the act (see Supreme Court Decision 88Do1247, Apr. 11, 1989, etc.).

B) (1) However, in light of the following circumstances, it is insufficient to readily conclude that Defendant 1 consistently denies the intention of murder from the investigative agency to the trial court, and that the victim Nonindicted 2 was dead, and that the victim Nonindicted 2 made a statement to the effect that he was unable to think that he was dead due to his own act, thereby denying not only his criminal act but also his conspiracy with Defendant 2, and that the prosecutor’s evidence required for the investigation is insufficient to readily conclude that Defendant 2 had committed the commission of murder by means of a functional control by the intent to jointly process murder, which is the elements of the crime of murder, and there is no other evidence sufficient to acknowledge it differently.

(2) Defendant 2 denies murder and conspiracy with Defendant 1 by consistently binding with the investigative agency from June 2, 2015 to the court of the trial. However, Defendant 2 did not restrain Defendant 1’s act as described in the facts charged, i.e., the same act as Defendant 2, from June 2, 2015 to June 23:00, i.e., the act as indicated in the facts charged, i., Defendant 1’s lock-wing box, which is a dangerous thing over three hours, from around 3 hours to around 23:00, and did not stop, but rather, Defendant 2 made a statement to the effect that Defendant 1’s act was not affected by Defendant 1’s assault, and that Defendant 2 did not have any wrong act. However, Defendant 2 made a statement to the effect that Defendant 1’s act was not carried out as follows.

① Defendant 1, who is a large father, gave birth to Nonindicted Party 1, is unable to take care of alcoholic beverages on the face of drinking alcohol due to the problem of house care or the problem of bringing up of his children, so he cannot take care of alcoholic beverages on his own, as well as on the face of the horses around, and on the face of the period after the lapse of time.

② Defendant 1, as a matter of raising children, was trying to use violence against his children when drinking alcohol, and Defendant 2 did not use violence as in the instant case because Defendant 1 was carried out by Defendant 1 at the same time.

③ However, on the day of the instant case, Defendant 1 2’s returning home, on the same grounds as the facts charged prior to Defendant 2’s returning home, assaulted Nonindicted 2 of the victim Nonindicted Party 2 by pushing ahead with a lock-wing box, which is a dangerous object, for the same reason as indicated in the facts charged. Defendant 2’s returning home to home and then sought a telegraph of Nonindicted Party 2 of the victim Nonindicted Party 2 with a lock-down box, which is re-tightly pushed down, due to the re-routing of the re-rupture, and then, Defendant 2 was the same as Defendant 1 at the time, and if Defendant 1 was unable to do so, there was a greater problem, and Defendant 1 did not control Defendant 1 even if leaving home because he was unable to do so.

In addition, according to Defendant 2’s mother and Nonindicted 3’s statement at the investigative agency, Defendant 1’s mother, and Defendant 1’s statement prior to Defendant 1’s request for attachment order, Defendant 2 had been continuously disputed or at home with Defendant 1 due to Defendant 1’s depression, alcohol dependence, and shock disorder. However, it is recognized that Defendant 2 had been living together with Defendant 1 at the time of the instant crime, since around December 2014, she had been living together with Defendant 1, who was living in the modern middle industry subordinate company, where he had been living in mountain by avoiding conflicts at home, leading up to his inner, common, and Busan.

(3) In full view of the contents of the act indicated in the facts charged in this case recognized by Defendant 2 and the circumstances described in paragraph (2) above, even though Defendant 2, the father of the victim non-indicted 2, was sufficiently predicted at the time of the crime in this case, that Defendant 2, the father of the victim non-indicted 2, had the possibility or risk of death due to Defendant 1’s salvating act, Defendant 2 did not perform his duty to protect and rear the victim pursuant to Article 913 of the Civil Act and Article 5 of the Child Welfare Act, and did not commit the crime of aiding and abetting murder for the same reason as that of Defendant 1’s salvating act, it is difficult to view that Defendant 2 committed the crime of murder through functional control based on the intention to co-processing, which is the subjective element of co-principal,

In addition, in light of the progress of the crime of murder in this case, the degree of the murder committed by Defendant 1, and the cause of the victim’s death, etc., Defendant 2 made the victim Nonindicted 2, who had been at his own discretion, to say that “N was erroneous.........................” and that the victim’s head was 5 to 6 times by hand, and the victim’s head was satisfyed to the place where Defendant 1 was located, it is difficult to view that such act alone constituted Defendant 2’s act of committing murder through functional control based on the co-principal’s intent and objective requirements.

(4) Therefore, the judgment of the court below which recognized Defendant 2 as co-principal of the murder of this case is erroneous in the misapprehension of legal principles as to the establishment of co-principal, which affected the conclusion of the judgment. Thus, this part of the defendant 2's assertion is with merit.

C) In a case where a court recognizes a minor criminal facts that are prosecuted within the scope recognized as identical to the facts charged, if it does not give substantial disadvantage to the defendant's defense in light of the progress of the trial, etc., it can recognize a minor criminal facts without changing the indictment. Thus, it can be recognized as aiding and abetting the criminal facts prosecuted as a joint criminal (see Supreme Court Decision 2002Do995, Jun. 24, 2004, etc.).

In this case, according to the evidence submitted by the prosecutor, Defendant 2, the father of the victim non-indicted 2, was sufficiently predicted that the victim non-indicted 2 was likely to die or has a risk of death due to the act committed by the victim non-indicted 1, such as the act recorded in the facts charged, but it is recognized that Defendant 1 1 aided and abetted the crime of murder by omission, etc., without preventing Defendant 1 from committing the act of sacrificing and neglecting the duty to protect and rear under Article 913 of the Civil Act and

In addition, in light of the process of the trial by the court below and the party hearing, even if Defendant 2 is found to have committed the crime of aiding and abetting murder, it does not seem that Defendant 2 would have suffered a substantial disadvantage

Therefore, the trial court ex officio recognizes Defendant 2 as a liability for the crime of aiding and abetting murder.

3. Conclusion

Therefore, Defendant 2’s appeal is well-grounded, and the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act and Article 35 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, without examining the prosecutor’s assertion on Defendant 1’s request for attachment order and the Defendants’ assertion on unreasonable sentencing, and the judgment of the court below is reversed and it is so decided as follows through pleadings.

The summary of the facts of the crime and evidence acknowledged by the court below is as follows: ① Defendant 1 did not immediately refrain from continuously assaulting Defendant 1’s head in the above smuggling while continuing to assault Defendant 1’s head by the above smuggling; ② Defendant 2 does not visit Defendant 1’s assault by the victim’s head; and Defendant 2 does not follow Defendant 1’s above violence pursuant to Article 913 of the Civil Act and Article 5 of the Child Welfare Act as the relative of the victim and protect the victim, even though Defendant 1’s head by continuing to assault Defendant 1’s head by the above smuggling, and instead, Defendant 1 does not follow the above violence by the victim’s head by continuing to assault the victim’s head by the above smuggling. ② Defendant 6 through 16 of the court below’s judgment citing this in the corresponding column of the Criminal Procedure Act with the exception of Articles 69 through 16 of the Criminal Procedure Act.

Defendant 1, from around 20:00 on June 2, 2015 to around 23:00 on the same day, was fully aware that the victim could die at a price for telegraph, such as the victim’s head, arms, legs, body gate, etc. using the above smuggling, which is a dangerous object, with the victim’s head, arms, legs, body gate, etc., even though he/she fully recognizes that the victim could die. As above, Defendant 1 had 30 to 40 telegraphs, such as the whole head part of the victim’s head.

After all, at around 23:56 on June 2, 2015, Defendant 1: (a) caused the victim to die at the emergency room of the Ulsan-dong University Hospital located in Ulsan-gu, Ulsan-gu, an emergency room of the Ulsan-gu, to be a wide range of skin-explosion and multiple-explosion, etc.; and (b) assisted and aided Defendant 2.

1. Relevant Article of the Act and the choice of punishment for the crime;

A. Defendant 1: Article 72 of the Child Welfare Act, Article 71(1)2 of the same Act, Article 17 subparag. 3 and 5 of the same Act, Article 30 of the Criminal Act (with regard to habitual child abuse as stated in paragraph (1) of the same Article, and habitual child abuse as indicated in the crime in the judgment of the court below), Article 250(1) of the Criminal Act (to be punished by imprisonment with prison labor), Article 250(1) of the Criminal Act

B. Defendant 2: Articles 71(1)2, 17 subparag. 3 (the point of child abuse stated in paragraph (2) of the crime committed at the time of sale, the choice of imprisonment), 71(1)2, and 17 subparag. 5 of the Child Welfare Act, Article 30 of the Criminal Act (the point of child abuse stated in subparagraph 3-b of the crime committed at the time of sale, the choice of imprisonment), Articles 250(1) and 32(1) of the Criminal Act (the point of aiding and abetting murder, the choice of limited imprisonment)

1. Statutory mitigation (as to the crime of murdering or aiding by the defendant 2);

Articles 32(2) and 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (within the scope of the sum of the long-term punishments of the crimes of homicide heavier than the punishment prescribed by the said Articles)

(b) Defendant 2: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act. Article 50 (Aggravation of Concurrent Crimes of Murder with Thest Punishment)

1. Order to complete a program (for the accused)

Article 8(1) of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes

1. Confiscation (as to the defendant 2):

Article 48 (1) 1 of the Criminal Act

1. The scope of punishment by law;

A. Defendant 1: Imprisonment with prison labor for up to 5 years up to 37 months;

B. Defendant 2: Imprisonment with prison labor for a period of two years to six months from June 22

2. Scope of recommended sentences according to the sentencing criteria;

A. Defendant 1

(1) homicide

[Determination of Punishment] Types 2 (Ordinary homicide)

【Special Convicts】 Victims who are vulnerable to the crimes, the Act on the Acceptance of Crut Crimes (Aggravated Elements), dolusent homicides (Discretionary Elements)

[Scope of Recommendation] Imprisonment of not less than 15 years

2) Violation of the Child Welfare Act (Habitual child abuse)

[Determination of Punishment] General Criteria for Abandonment and Abuse> Types 2 of the Act on Arrest, Confinement, Abandonment and Abuse

[Special Persons] When a crime is committed repeatedly for a considerable period of time, the degree of abuse is serious, and habitual crimes are committed.

[Scope of Recommendation] One year to three years of imprisonment

3) Application of standards for handling multiple crimes: 15 years or more of imprisonment;

B. Defendant 2

1) Crimes of aiding and abetting murder

Since it is an aiding and abetting offender, the sentencing criteria shall not apply.

2) Criminal No. 3-b. Violation of the Child Welfare Act (child abuse)

[Determination of Punishment] General Criteria for Abandonment and Abuse> Types 2 of the Act on Arrest, Confinement, Abandonment and Abuse

【Specially undersided Person】 The degree of abandonment or abuse is serious;

[Scope of Recommendation] One year to two years of imprisonment

3) The crime of violation of the Child Welfare Act (child abuse) in the judgment of the court below

[Determination of Punishment] General Criteria for Abandonment and Abuse> Types 2 of the Act on Arrest, Confinement, Abandonment and Abuse

【Special Convicted Person】

[Scope of Recommendation] Imprisonment of six months to one year and six months

4) Application of standards for handling multiple crimes: Imprisonment with prison labor for at least two years and six months (limited to the lowest limit of the above recommended punishment in a crime for which no sentencing guidelines have been set, and the lower limit of the applicable punishment is higher, thus complying therewith).

3. Determination of sentence;

(a) all children shall grow up happy in a stable family environment for the development of perfect and harmonious personality and shall be protected from all forms of abuse, violence and brue;

The parents of a child shall rear the child healthy and safely at home according to the time of growth, and shall not inflict any physical pain or mental suffering, such as verbal abuse, etc. on the child.

B. Defendant 1, the mother of the victims of the instant case, has been habitually abused their children while protecting the victims’ body and emotional sentiments, and neglecting their obligation to rear them healthy and safely, and also resulted in their death by saving the victims Nonindicted 2, who are only two years of age, in a brupt and unasting manner.

The degree of physical and mental pain suffered by the victim non-indicted 2, who lost her life due to the cruel and influorial act for a long time, is difficult to measure the degree of physical and mental pain, which was suffered by the victim non-indicted 2, who continued to suffer from the 30 months old age, which is only 30 months after the birth. Furthermore, it is difficult to see the process next to the victim non-indicted 1, who was suffering from the victim non-indicted 1, the age of 4 years old who continued to suffer from the her parents, and it is difficult to see the negative impacts on the growth process in the future.

Defendant 1 committed the instant crime against the victims who were his children, even considering the mental illness, such as depression, alcohol dependence, and shock disorder, which occurred from Defendant 1’s influenite growth and after childbirth, the instant crime was committed so far as it cannot be seen as an accident that occurred in a normal discipline, physical punishment, and the process, and it is inevitable to view that Defendant 1’s children were influenite and incompetuous to the extent that it could not be seen as an accident that occurred in the process. Thus, it is difficult to view that Defendant 1’s children were influence of resolving their depression, stress, and stress.

The cruelness of the instant crime committed by Defendant 1 is significantly unacceptable in light of the general public’s legal sentiment, and the serious punishment corresponding to the relevant criminal liability should be followed.

However, Defendant 1 stated that Defendant 1’s mistake is too late and is against the depth of the victim’s name booming, and that Defendant 1 is likely to be aware of the crime and criticism that Defendant 1 murdered his own child with his own hands and live together with his life, taking into account various circumstances revealed in the argument process of the instant case, and the scope of the recommended sentencing guidelines formulated by the Sentencing Commission, etc., shall be determined by comprehensively taking into account the following factors, as well as the scope of the recommended sentencing guidelines formulated by the Sentencing Commission.

C. Although Defendant 2, who is the father of the victims of the instant case and the husband of Defendant 1, was the victim of the instant case, even though the marital life with Defendant 1 was not lost and the conflict and fire fighting was not cut off, he was under the duty to avoid it, to avoid it, to resolve or mitigate the conflict and fire fighting, and to ensure that the victims of the instant case, who are children, were the victims of the instant case, were healthy and safe, such as other children, by getting out of the abnormal and secret violence event of Defendant 1.

Nevertheless, Defendant 2 avoided this method by way of withdrawal whenever conflict and extinguishment with Defendant 1 are repeated, and even though the exercise of abnormal violence against Defendant 1’s children continues to exist and time has passed, Defendant 2 has been constantly and objectively resolving it in a timely and timely manner.

In addition, on the day of the instant crime, Defendant 1’s use of violence was in a situation where the victim Nonindicted 2 could have sufficiently predicted the victim Nonindicted 2’s death at an unfortunate, unfortunate and unfortunateed level in light of the general public’s legal sentiment. However, Defendant 1’s use of violence was consistent with the attitude in which it was impossible to lead Defendant 1 to exercise the violence or to make it rational without all the violence events, and eventually, the victim Nonindicted 2 died.

Considering the fact that Defendant 2’s act committed under Defendant 2’s aiding and abetting that is difficult to understand even with Defendant 2’s unlimited responsibility, and the victim Nonindicted Party 2 died at the end of the extreme pain without properly avoiding his lives, Defendant 2’s act should also be subject to the corresponding punishment.

However, unlike the judgment of the court below which recognized the co-principal of murder, the court below held that the defendant 2 is liable for the crime of aiding and abetting murder to the defendant 2; that the defendant 2 made a statement that he was liable for the death of the victim non-indicted 2 by his mistake; that the defendant 2 also seems to have caused the death of his child due to his mistake, and that the defendant 2 should be aware of the criminal responsibility and criticism that he caused the death of his child and live together with his life; and that there are various circumstances indicated in the proceedings of the argument of this case, and the scope of the recommended sentencing guidelines prepared by the Sentencing Committee of the Supreme Court, which are more mitigated than the judgment of the court below.

Of the facts charged in the instant case, the summary of the murder charge against Defendant 2 is as set forth in the above 2.B. 1.

However, as seen in the above 2.b. 3, it is difficult to view that Defendant 2’s act constitutes a co-principal for murder.

Thus, since this part of the facts charged against Defendant 2 constitutes a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of the murder aiding and abetting as stated in the facts charged in this part,

1. Summary of the request for attachment order;

Defendant 1 is a person who has committed murder and is in danger of recommitting such crime.

2. Relevant legal principles

“Risk of recommitting a homicide” under Article 5(3) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders refers to a lack of possibility of recommitting a crime, and there is a considerable probability that the person subject to an application for an attachment order may injure legal peace by committing a homicide again in the future. The risk of recommitting a homicide shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the application for an attachment order, the conduct prior to the relevant crime, motive, means of the relevant crime, circumstances after the crime, the outlines after the crime, etc., and such determination shall be based on the time of the judgment inasmuch as it is assumed for the future (see Supreme Court Decision 2012Do2289, 2012Do205, 2012Do5, 2012Do51, May 10, 2012).

3. Determination

The following circumstances acknowledged by the evidence and records of this case: (i) Defendant 1 did not commit murder against many unspecified victims; (ii) Defendant 1 did not have any other criminal records except for those subject to punishment once a fine due to drinking driving; and (iii) prior investigation of this case reveals that the standard of “Korean type offender risk assessment scale (KOTRAS-G)” is high at 13 points in total; (iv) it is difficult to readily conclude Defendant 1’s request for recidivism based on the following circumstances: (i) it is difficult to recognize all of the crimes of this case; (ii) it is possible for Defendant 1 to receive imprisonment with prison labor after being isolated from society through an order to attach an electronic device for a prolonged period of time; and (iii) it appears that Defendant 1’s risk of recidivism is low; (iii) it appears that Defendant 1 is likely to be subject to imprisonment with prison labor and order to complete the crime of this case; and (iv) it appears that Defendant 1’s order to complete the crime of this case, based on the aforementioned legal principles, etc.

Judges Kim Ho-ho (Presiding Judge)