2015 Gohap37 homicide

A

All-times (prosecutions) and divers (public trials)

Attorney B

June 19, 2015

A defendant shall be punished by imprisonment for eight years.

One knife (No. 1) and one knife (No. 3) shall be confiscated.

Criminal facts

The Defendant, as a Russia’s nationality, was on board C (812 tons) which is the freezing carrier ship of Russia and worked as the 2nd mate, and the above C entered into the port of the Juscheon-dong, Busan on December 31, 2014 for repair of the ship from 18:00 to 3 parts of the sinking-dong, Busan on December 31, 2014.

On January 1, 2015, the Defendant: (a) around 05:45, at the cooking room in the above C on board the Defendant: (b) on the ground that there is no food satch supplied in the victim D (38 years of age) who was a cook prepared for an Acsatus and the usual vessel; (c) tried to kill the victim by fighting the body of the victim by spraying the food knife in the restaurant (18cm in length) toward the part of the Defendant; (d) was pushed the victim with the Defendant’s hand; (e) took the knife of the victim’s hand by breaking the knife, which is a deadly weapon used by the victim; and (e) took three times the victim’s left chest, was listed on the part of the part of the passenger who was written, and killed the victim by taking the knife’s face twice in the face of the victim, and caused the victim’s death by taking the knife’s finger off.

Summary of Evidence

1. Partial statement of the defendant;

1. Copies of each protocol of examination of the witness (E, F);

1. Statement of the police inspection;

1. A corpse of corpse;

1. The judgment on each existing defendant and his defense counsel's assertion on the prosecution invoice (as a result of the response of DNA), the prosecution invoice (as a result of the motion for appraisal), 1. The prosecution invoice (as a result of the motion for appraisal), 1. The identification knife (No. 1), 1 food knife (No. 3) seized

1. Summary of the assertion

The defendant and his defense counsel asserted that the defendant's act constitutes self-defense to defend against the present unfair infringement of his/her life or body, since the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife is knife knife

2. Relevant legal principles

1) In the crime of murder, the intent of murder does not necessarily require the intention of murder or planned murder, but it is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to one’s own act, and its recognition or prediction is not only conclusive but also conclusive. In a case where the defendant asserts that there was no criminal intent of murder at the time of committing the crime, and that there was only the criminal intent of murder or assault, the issue of whether the defendant was the criminal intent of murder should be determined by taking into account the objective circumstances before and after committing the crime, such as the background leading up to the crime, motive, type of deadly weapons prepared for the crime, method of attack, parts and repetition of attack, and possibility of causing the death (see, e.g., Supreme Court Decision 2006Do734, Apr. 14, 206).

2) In addition, where it is reasonable to deem that the perpetrator’s act was at the first place of attack with the intent of attacking the victim’s unfair attack rather than with the aim of defending the victim’s unfair attack, and that the harmful act was at the same time of attack, and at the same time of attack, it cannot be deemed as self-defense or excessive defense (see, e.g., Supreme Court Decision 200Do228, Mar. 28, 2000). It does not constitute self-defense, unless it is inevitable to defend the victim’s right against the act of attack, but it does not constitute self-defense (see, e.g., Supreme Court Decision 96Do241, Apr. 9, 196).

3. Determination

According to the following circumstances acknowledged by the evidence duly adopted and investigated by the court, it is difficult to view the crime of this case as an act of defending the defendant from the victim's attack. Rather, it is reasonable to view that the defendant was actively committed in the intent of murdering the victim.

① On the left chest of the victim, three knife knife knife is found in a different direction from each other. In light of the parts, number, depth, etc. of the upper knife on the knife, it is difficult to see that the knife knife is knife on the victim’s chest, and that the Defendant intentionally knife the victim’s left chest on several occasions in a knife.

② If the knives knif the Defendant sticked on the chest of the victim, as alleged by the Defendant, in the course of going beyond the victim’s knife, the knife occurred in the after part of the victim’s knife, etc., and the Defendant’s chests were faced with knife due to knife, etc., and there is no injury to the victim’s chest, and there is no injury to the Defendant’s chest. ③ According to the testimony on deck E, the Defendant had already knife the knife on the knife of the victim who knife in the knife and knife on the knife, knife knife knife knife knife knife knife knife knife knife knife knife knife.

⑤ Out of the victim’s left chest, the damages presumed to have been caused by the knife around the knife are discovered. This seems to have occurred in the process of cutting the knife knife cited by the Defendant and cutting the knife of the victim’s chest.

Therefore, the defendant and his defense counsel's above assertion is rejected.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 250(1) of the Criminal Act (Appointment of Imprisonment for Imprisonment)

1. Confiscation;

1. The scope of punishment by law: Imprisonment with prison labor for not less than five years but not more than 30 years;

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

[Determination of Punishment] homicide, Type 2 (Ordinary homicide)

[Special Sentencing] The attraction of the victim(s)(s)

[Scope of Recommendation] Imprisonment with prison labor for not less than seven years but not more than 12 years

3. According to the sentence decision, the crime of this case was committed by the defendant while putting the victim a knife with the victim while putting the knife with the victim towards the defendant, and murdered the victim by taking the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knif

However, when the defendant had a knife dispute with the victim, and suffered a knife from the victim's face, the defendant committed the crime of this case in a contingent way by scambling it first, and the defendant's act itself recognizes the fact that the victim died, and reflects it, etc., considering the circumstances favorable to the defendant, the defendant's age, character and behavior, environment, family relationship, and circumstances after the crime shall be considered as favorable to the defendant, and the punishment as ordered shall be determined by taking into account various sentencing conditions shown in the arguments of this case,

Judge of the presiding judge;

Judgment of the Supreme Court

Judges Heung-ho