2018Gohap166 A. Violation of the Punishment of Violences, etc. Act (joint residence)

(b) Violation of the Punishment of Violences, etc. Act;

(c) Injury resulting from arrest;

1.(a)(c) A;

2.2.B

3.(a)(c) 3.

4.(a)(c) D

Class Kim Jong-ho (prosecution), knives, and leaphos (Trial)

Law Firm Pyeongtaek (for Defendant A and B)

[Defendant-Appellee]

Law Firm Name (for the defendant C and D)

Attorney Lee Im-soo

October 11, 2018

Defendant A shall be punished by imprisonment for one year, by imprisonment for six months, by imprisonment for Defendant C, by imprisonment for one year, and by imprisonment for six months, respectively.

However, the execution of the above punishment against the Defendants shall be suspended for two years from the date of the final judgment of this case.

Facts of crime

Defendant A is the second victim E (n, 51 years of age), and Defendant B is the spouse of Defendant A. Defendant C is the head of Fmanwon branch, the emergency patient transport service company, and Defendant D is the employee of Fmanwon branch.

A victim was employed as an employee of G (State) operated by Defendant A and Defendant B, and around September 12, 2017, the victim did not receive monthly pay at the above G office, and the victim was assaulted H. Accordingly, Defendant A and Defendant B expressed that the victim was flickly flicked to be hospitalized into a mental hospital by using the following: (a) the victim was flickly flickly flicked to his family; (b) the victim was forced to transfer the victim to the mental hospital by contact the Defendant C; and (c) the Defendant B expressed that the victim was flickly flickly flick to the victim so that the Defendant and the victim could easily control the Defendant A and the victim.

1. The Defendants’ joint criminal conduct (joint confinement) sent to the Defendants’ joint criminal conduct (violation of the Punishment of Violences, etc. Act) a letter to the victim I living together on September 13, 2017, and around October 10:32, 2017, i.e., i., i., i., i.e., i., i., i., ii., ii., ii., i.e., the victim’s house at the victim’s house at the victim’s house at around 11:51 each day, i.e., i., i., she found the victim’s house at the victim’s house at the sexual apartment at the victim’s house at around 11:51, and (ii) ordered the Defendant C and Defendant D to open a door to the victim’s house, and enter the victim’s house to attract the victim.

Defendant C and Defendant D moved the victim to the first-aid hospital located in the Nam-gu Incheon Metropolitan City, by forcing the victim to enter the house with a new attack, and attempted to leave the hospital located in the first-aid vehicle, and then hospitalized the victim at the same time on the ground that there was no consent from two or more lineal blood relatives of the victim from the doctor in charge. Accordingly, Defendant C and Defendant C got the victim to the victim and the above [the victim] (the victim was able to consent to hospitalization, and the victim was able to get the consent of hospitalization. Defendant C and Defendant D moved the victim to the first-aid vehicle, and were hospitalized the victim to the Q Hospital located in the Nam-gu Incheon Metropolitan City, Incheon Metropolitan City, and then hospitalized the victim from the point of view of the victim’s intention at around 15:28,00 on the day. The Defendants jointly detained the victim. The Defendants jointly detained the victim against the victim’s intent.

2. Joint criminal conduct (the violation of the Punishment of Violences, etc. Act and the injury caused by arrest) committed by the defendants A, C, and D;

On September 13, 2017, the Defendants confirmed that B was living outside of the victim's living room I, and confirmed that they were living together with the victim's house. At the victim's house, at around 11:51 on September 13, 2017, Defendant A opened the victim's house and instructed Defendant C and Defendant D to leave the victim's house, and Defendant C and Defendant D put the victim's arms into the house, and then pushed the victim's house. The victim's body was sealed into the victim's house, and the victim's body was removed from the victim's house, and the victim was able to take care of the victim's house, and the victim was able to take care of the victim's house, and the victim was able to take care of the victim's house, and the victim was able to take care of the victim's 4th floor, and the victim was able to walk out of the victim's bridge, and the victim was able to take care of the victim's bridge.

A summary of the steam

1. Each legal statement of the defendant A, B, and part of each legal statement of the defendant C and D

1. Legal statement of witness E;

1. The apartmentCCTV image CD;

1. A written diagnosis of injury;

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant A, C, and D: Article 2(2)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (the point of joint confinement, the choice of imprisonment), Article 2(2)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of joint residence intrusion, the choice of imprisonment), Articles 281(1), 276(1), and 30 of the Criminal Act

B. Defendant B: Article 2(2)2 of the Punishment of Violences, etc. Act and Article 276(1) of the Criminal Act (the point of joint confinement and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Defendant A, C, or D: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (aggravating concurrent crimes to the extent that the punishment is aggregated with the maximum term of each crime for causing bodily injury resulting from arrest, which is the largest penalty)

1. Discretionary mitigation;

Defendant D: Articles 53 and 55(1)3 of the Criminal Act (hereinafter referred to as “contributive circumstances”)

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act

Judgment on Defendant C, D, and Defense Counsel's argument

1. Summary of the assertion

Defendant C and D asserted that the crime of bodily injury resulting from arrest was not established since there was no intention to infringe on the victim’s residence or there was no intention to detain the victim. Therefore, the crime of violation of the Punishment of Violences, etc. Act (joint residence) and the crime of violation of the Punishment of Violences, etc. Act (joint confinement) and the crime of violation of the Punishment of Violences, etc. Act (joint confinement).

2. Relevant legal principles

According to Article 40(2) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients, where it is necessary for a mentally ill person to be hospitalized in a mental medical institution or mental health sanatorium (hereinafter referred to as "mental medical institution, etc."), the legal guardian shall respect the mental patient's intent to the maximum extent possible, and the head of a mental medical institution, etc. pursuant to Article 43(1) may allow hospitalization, etc. of the relevant mentally ill person only where at least two legal guardians of the mentally ill person file

In light of the purport of these provisions, and the basic ideology of Article 2(2), (5), and (7) of the above Act that all mentally ill persons shall be guaranteed dignity and value as human beings and shall be encouraged to be hospitalized in a mental health improvement facility according to their own will, and in principle, they shall have the right to decide and decide on matters concerning their body and property. In the case of hospitalization by a legal guardian as provided for in Article 43(1) of the above Act, even if the legal guardian consents, a psychiatrist diagnosed the need for direct diagnosis and hospitalization, and accordingly, the director of a mental medical institution shall determine hospitalization, and accordingly, the exercise of physical power within the reasonable scope from a mental and social perspective is allowed only when a mentally ill person resists the measure of hospitalization meeting such requirements (see, e.g., Supreme Court Decision 200Do415, Feb. 23, 2001).

3. Determination

Examining the following circumstances acknowledged by the evidence duly adopted and investigated by the court in light of the aforementioned legal principles, it is recognized that Defendant C and D had had the intent to commit an intrusion and confinement at the time of the instant case, and that the said Defendants were arrested and inflicted bodily injury upon the victim as stated in the criminal facts. Thus, the above Defendants’ assertion cannot be accepted.

The victim stated specifically and consistently with the criminal facts in an investigative agency and in this court.

Defendant C and D asserted that, at the time of the instant case, Defendant C and D attempted to attract the victim at the investigative agency, and they were merely the victim’s grandchildren who resisted against it. However, according to the apartmentCCTV image, Defendant C, C and D entered the victim’s apartment door after about three minutes, and Defendant C and D got out of the victim’s apartment door. After about ten minutes thereafter, Defendant C and D went out of the apartment door. In other words, the above CCTV image was first made the victim open the victim’s door, and then left the scene, and thereafter, Defendant C and D went out of the front door. In light of the fact that Defendant C, D and D took out the victim’s pressure up to ten minutes after leaving the scene, Defendant C and D had the victim take out the scene. In addition, the above CCTV image appears to be consistent with the victim’s statement that Defendant C and D had taken out the victim’s right to arrest the victim in light of the fact that Defendant C and D had taken out the victim’s pressure from the scene.

The defendant Ado and himself made a statement consistent with the victim's statement by allowing the victim to open a door and leaving the scene first, thereby leaving the scene.

○ Even based on the statement of Defendant C and D, the fact that the victim resisted to move on his own at the time of the instant case and was forced to exercise physical force is recognized. The fact that ○○○○ stated the injury diagnosis letter issued on September 15, 2017 as the main disease in the form of a scopical erode, scopical damage to the base and scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical scopical sc

Defendant C and D had been aware that Defendant A and B wanted to have the victims forced to be hospitalized in a mental hospital, but have yet to be hospitalized in Qa while there was no diagnosis, diagnosis, or hospitalization decision by a psychiatrist who had face-to-faced victims.

In light of the above circumstances, Defendant C and D infringed upon the victim’s residence to take advantage of the victim’s housing even though they did not want to take part in the victim, and thus, the intention of intrusion is recognized. Defendant C and D’s transfer of the victim to an emergency transport vehicle to a mental hospital by force can be evaluated as having detained the victim jointly with Defendant A and B, and the intent of confinement is also recognized. Furthermore, as indicated in the facts constituting a crime, Defendant C and D were forced to attract the victim and carried the victim on the emergency transport vehicle and thereby, the victim was injured.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A and C: Imprisonment with labor for one year to 42 years;

B. Defendant B: Imprisonment with prison labor from one month to seven years and six months; Defendant D: Imprisonment with labor from six months to 21 years;

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

A. Since the crime of violation of the Punishment of Violences, etc. Act (joint residence) against which the sentencing guidelines are not set for Defendant A and the remaining crimes for which the sentencing guidelines are set are concurrent crimes under the former part of Article 38 of the Criminal Act, only the lower limit of the recommended range of crimes for which the sentencing guidelines

1. Crimes No. 1: An injury resulting from arrest;

[Determination of Punishment] Where the result of an injury to arrest, confinement, abandonment, or confinement is caused by the arrest, confinement, or abuse, the Chapter 1 of the Act on the Aggravated Punishment (Bodily Injury resulting from Arrest, Confinement)

[Special Mitigation] Ad hoc Inspector

[Scope of Recommendation] Imprisonment of 6 months to 1 year and 6 months (Mitigation)

2. Second offense: Violation of the Punishment of Violences, etc. Act;

[Determination of Punishment] General Criteria for Arrest, Confinement, or Abandonment Abuse (General Arrest and Confinement)

[Special Mitigation] Ad hoc Inspector

[Scope of Recommendation] One month to 8 months (Discretionary Zone)

3) The scope of final recommendations following the increase in multiple offenses

From 6 months to 10 months of imprisonment (the first crime maximum + the second crime maximum 1/2)

B. Defendant B

[Determination of Punishment] General Criteria for Arrest, Confinement, Abandonment, and Misappropriation (General Arrest and Confinement)

[Special Mitigation] Ad hoc Inspector

[Scope of Recommendation] Imprisonment from one month to eight months (Discretionary Zone)

C. Defendant C, D

1. Second offense: An injury resulting from arrest;

[Determination of Punishment] In case of arrest, detention, or abandonment abuse result in injury to the ‘Arrest and Confinement'> Types 1 (Bodily Injury resulting from Arrest and Confinement)

[Scope of Recommendation] One year to two years (Basic Area)

2. Second offense: Violation of the Punishment of Violences, etc. Act;

[Determination of Punishment] General Criteria for Arrest, Confinement, Abandonment, or Abuse (General Arrest and Confinement)

[Scope of Recommendation] Six months of imprisonment to one year (Basic Area)

3) The scope of final recommendations following the increase in multiple offenses

From one year to two years of imprisonment (the upper limit of the first crime + the upper limit of the second crime)

3. Determination of sentence;

Defendant A and B knew that there was no genuine consent of P by the legal guardian of the victim, thereby allowing the victim to be hospitalized in the hospital, pretending to consent of P, and in light of such criminal conduct, the nature of the crime is not good. Defendant C and D did not intrude into the victim’s residence without legitimate authority and forced the victim to arrest him/her in an emergency and carried out an emergency transport vehicle during that process, and the responsibility for the crime was not easy.

However, Defendant A and B do not want to punish the above Defendants by mutual consent with the victim. Defendants B and D have no record of criminal punishment yet. Defendants C and D committed the instant crime in the course of transferring the victim to the hospital at the request of Defendant A, and it is difficult to view that they led to the entire crime. In particular, in the case of Defendant D, the degree of participation in the instant crime may be deemed relatively relatively relatively less that as employees of the emergency patient transport service company operated by Defendant C as employees of Defendant C.

In full view of these circumstances and the Defendants’ age, character and conduct, environment, relationship with the victim, motive, means and consequence of the crime, and the circumstances after the crime, etc., the sentence shall be determined as ordered (as regards Defendant D, the punishment shall be set below the lower limit of the recommended range of the sentencing criteria in consideration of the aforementioned favorable sentencing grounds, etc.).

The presiding judge, Kim Jong-chul

Judges Kim Gin-ju

Judges Gin Jae-in