2015No438 homicide, temporary structure, fire prevention, murder preparation, temporary structure, permanent structure or embankment

Preliminary

2015No. 16 (Consolidated Medical Treatment and Custody)

Copper (33*********), and non-occupationals

Residential Chungcheongnam-gun and west-gun omitted

Reference domicile of Yeongdeungpo-gu Seoul Metropolitan Government

Prosecutor

Man-kining (prosecutions) and a fixed number of public trials;

Attorney Sung-sung (Korean)

Daejeon District Court Decision 2015Gohap22 Decided August 6, 2015

November 13, 2015

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Seized one (No. 1) shall be confiscated.

A candidate for medical treatment and custody shall be punished by medical treatment and custody.

1. Summary of grounds for appeal;

A. Error of mistake

In light of the background, means, methods, etc. of the fire prevention crime of this case, including the preliminary fire prevention, the defendant and the requester for medical treatment and custody (hereinafter referred to as the "defendant") at the time of the crime were at least aware of the possibility or risk that the victims may die due to their own fire prevention and dolusent intent to commit murder, i.e., murder., murder. However, the court below denied this and did not ask the defendant to commit the crime of attempted murder and murder.

B. Unreasonable sentencing

The sentence of the lower court (one year and six months) shall be too minor.

2. Determination ex officio.

The prosecutor filed a claim for medical treatment and custody against the defendant in the trial of the party, and the court decided to jointly deliberate on the defendant's case and the custody case. The medical treatment and custody case should be sentenced at the same time with the defendant's case and the judgment should be sentenced at the same time, and as seen below, the judgment of the court below can no longer be maintained in this respect, unless this court decides to accept the request for medical treatment and custody against the defendant.

However, despite such reasons for ex officio destruction, the prosecutor's argument on the grounds for appeal is meaningful as the subject of the judgment of the court.

3. Determination on the grounds for appeal

A. As to the assertion of mistake of fact

As to the facts charged regarding the Defendant’s attempted murder and the preparation for murder, the lower court acquitted the Defendant of the facts charged on the ground that it is difficult to view that the evidence submitted by the prosecutor based on the legal principles and reasons as stated in its holding alone alone was proven to the extent that there is no reasonable doubt that there was a criminal intent to kill the Defendant or the victims at the time of the crime of fire prevention of this case.

In light of the records, it seems that the victims were aware of their lives at the time when the defendant prevented the crime of fire of this case, so in such a case, the victims cannot be denied the probability that the victims could die due to fire if the victims were unable to evacuate as prescribed by the Ordinance of the Ministry of Health and Welfare, even if they were broken out or broken out, it cannot be denied. Thus, as asserted in the grounds of appeal by the prosecutor, the possibility that the defendant went to the crime of fire of this case under the criminal intent of murder cannot be ruled out completely.

However, according to the records, the defendant, who was in a state of low capacity to discern things or make decisions due to the disorder before and after the crime of fire prevention of this case, was merely the victim's intent to kill the house, and it seems sufficient to view that the defendant did not have any intention to harm people's life further (the defendant's first suspect who voluntarily surrenders immediately after the crime of delivery of the defendant was committed after the crime of fire of this case, and even if the victim was defrised during the first suspect examination, it would be sufficient to conclude that the victims might not cause any harm to human life, and that it was sufficient to say that the defendant had a prudented with a prudent for a large sound, and that it was sufficient for the victim to view that the defendant had consistently committed the crime of fire of this case to the extent that he had no sufficient means to prove that the defendant had been guilty before and after the crime of fire prevention of this case.)

Therefore, the court below is justified in finding the defendant not guilty of the above facts concerning the defendant's attempted murder and the preparation for murder under such purport, and it does not appear that there were errors by mistake of facts as alleged by the prosecutor.

This part of the prosecutor's argument is without merit.

B. Regarding the assertion of unfair sentencing

이 사건 방화 범행은 피해자들 개인에 대한 피해를 넘어서서 사회의 안전성까지 위 협하는 범행으로서 그 위험성에 비추어 가벌성이 작지 아니하다. 게다가 피고인은 이 미 이 사건 방화 범행 시로부터 5년 전인 2010. 7.경에도 피해자 김○○, 박◎의 집 에 같은 수법으로 불을 질러 그 피해자들의 집을 전소시키고 박◎◇ 처인 정○○에게 화상을 입히게 하여 당시 그에 따른 형사처벌을 받은 바 있기도 하다(당시 피고인은 동종 전과 및 실형 전과가 없는 점, 김○○을 위하여 1,500만 원을 공탁하고, 정○○와 합의하였음을 주된 정상으로 참작받아 징역 3년에 집행유예 4년이라는 비교적 관대한 처벌을 받았다). 그런데도 피고인은 위 2010. 7.경 방화 피해자인 김○○, 박◎◇에 대 하여 또 다시 방화 범행을 저지르거나 저지르려 하였고, 피해자 김○에대하여 새로 이 방화 범행을 저질렀다. 그 결과 피해자 김○○에 대하여는 집이 전소되는 피해를 야기하고, 피해자 김◎0의 집에 대하여는 위 2010. 7.경 방화로 전소되어 다시 건축한 집에 다시 방화 피해를 야기하는 결과를 초래하였을 뿐만 아니라, 피해자들 모두에 대 하여 그들의 삶의 보금자리가 공격당하는 적지 않은 정신적 충격을 준 것으로 보인다. 다행히 이번 방화 범행에서 피해자들에게 별다른 인명피해까지 야기시키지는 않았으나 두 번씩이나 피해자들에게 돌이킬 수 없는 인명피해를 야기시킬 수 있었던 위험성을 초래한 이상 그 가벌성이 결코 가볍다고 볼 수 없다. 피해자들도 현재까지 그 피해회 복을 하지 못한 채 피고인으로부터 또 다시 같은 범행을 당하지나 않을까 두려워하면 서 피고인에 대한 엄벌을 호소하고 있는 실정이다.

Although the defendant voluntarily surrenders to the investigation agency immediately after the crime of fire prevention of this case, he did not seem to have an attitude against the purport that his criminal act was justifiable until the investigation agency intended to commit the crime of this case as well as the court. (As a result, the meaning of evaluating the number of the above person as a favorable reason for the defendant is to be reflected in evaluating it as a normal reason for the defendant).

Based on these circumstances, after compiling various sentencing conditions under Article 51 of the Criminal Code as shown in the argument of the present case, the Supreme Court Sentencing Committee, which applies to the crime of fire prevention of this case, refers to the scope of recommended sentences under the sentencing guidelines of the Supreme Court Sentencing Committee, which applies to the crime of fire prevention of this case. Even considering the circumstances that the defendant was old, the defendant was in a state of lacking capacity to distinguish things or make decisions due to the damage network against the victims, and immediately after the crime, the sentence of the court below against the defendant seems to be too uneasible.

The prosecutor's assertion pointing this out is with merit.

4. Conclusion

Therefore, the court below's judgment is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act as the ground for reversal ex officio and the prosecutor's appeal is justified, and the judgment below is reversed and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts and facts constituting grounds for medical treatment and custody

【Criminal Power】

On November 19, 2010, the Defendant was sentenced to a suspended sentence of four years for a period of imprisonment with prison labor for the crime of injury or injury resulting from the present state building or fire at the Daejeon High Court.

【Criminal Facts】

피고인은 평소 같은 마을에 거주하는 피해자 김◎미, 김○○, 박◎◇가 평소 피고인 의 집 주변에 농약을 뿌려 피고인을 괴롭힌다는 망상에 사로잡혀 있다가 휘발유를 이 용하여 피해자들의 집에 불을 지르기로 마음을 먹었다 .

Accordingly, on March 16, 2015, the Defendant purchased gasoline 20 liters from “gas station from March 16, 2015,” located in west-gun, Seocheon-gun, Seocheon-gun, Seocheon-gun, and used it as the Defendant’s house, and then 10 liters divide it into three parts of plastic transit, and then planned to extinguish it into the victims’ house.

The Defendant is not in the state of having the ability to discern things or make decisions due to such a malfunction, etc.

1. Dried building or fire prevention;

(a) Crimes against the victim Kim ○○ Husband and wife;

On March 16, 2015, the Defendant: (a) around 21:53, the Defendant: (b) loaded three gasolinens and one tree net (90cm in total length) to be used in a shouldering of the victim Kim Ba-gun-gun, Chungcheongnam-gun, Chungcheongnam-gun; (c) carried one gasoline tank and one tree net in front of the house of the victim Kim Hun (77 years of age) located in the west-gun, Chungcheongnam-gun, west-gun; and (d) carried them into the house by attaching fire at the entrance of the victim’s house with a fluor, connected with the victim’s house and connected glass, by using a wooden net; and (d) moved the gasoline length and the entire column of the fluor, which is stuck with a fluor, into the victim’s house and fluor.

As a result, the defendant destroyed the building that the victim used as a residence in the amount of 48,418,700 won or more for repair costs.

B. Crimes against the victim Kim ○○ Husband and wife

On March 16, 2015, at around 22:05, the Defendant continued to load 2 gasolinens remaining in the above Orala and brine, carried the brine, and moved the brine to the entire living room and the entire brine inside the body of the victim Kim ○ (83 years of age) who was on 456 roads, due to the transmission of west-gun, Chungcheongnam-gun, Chungcheongnam-gun, the Defendant: (a) laid the brine at the entrance of the victim; (b) laid the brine by attaching a fire to the brine; and (c) laid the body of the victim’s house by using the brine; and (d) laid the flue glass door with a fire attached to the victim’s house; and (d) moved the flue length into the entire body of the ward and the house.

Accordingly, the defendant destroyed the building that the victim used as a residence to be 64,050,000 won as repair cost.

2. Preliminary building or fire prevention reserve;

피고인은 충남 서천군 장천로에 있는 피해자 박◎ (53세) 의 집에 불을 지르기 위하 여 위와 같이 2015. 3. 16. 15:00경 휘발유 20리터를 구입하고 이를 나누어 담은 플라 스틱통 3개와 나무망치를 위 오토바이에 싣고 라이터를 소지한 채 집을 나섰으나, 같 은 날 21:53경 위와 같이 김○○의 집에 불을 지른 후 계속하여 김○○의 집에 불을 지르기 위하여 이동하는 과정에서 휘발유통 1개를 오토바이에서 떨어뜨리는 바람에 그 뜻을 이루지 못하였다.

As a result, the defendant set fire to and destroyed the structure used as the residence of the victim.

【Facts of Grounds for Medical Treatment and Custody】

As above, the Defendant committed the above crime in a state where he/she lacks the ability to discern things or make decisions due to a severe disorder and needs to receive medical treatment at a medical treatment and custody facility, and is in danger of repeating the crime.

Summary of Evidence

1. Defendant's legal statement;

1. Each police protocol on KimO and Kim○-○;

1. A protocol of seizure and a protocol of seizure;

1. Written estimate of damage by Kim○-○, and victim Kim Professor0.

1. Each investigation report (the sequence 11 through 15 of the evidence list);

1. Notification of the result of mental appraisal;

1. Previous convictions: Criminal history records, etc. inquiry report (former*), investigation report (former and previous judgments, etc. attached), necessity of treatment as stated in the judgment, and risk of recidivism: the current status of the accused recognized by the record;

New conditions, the details and the background of the instant fire prevention crime, the circumstances after the crime, the investigation process of the Defendant, and

Comprehensively taking into account the statements and attitudes of the court below and the trial court, criminal records, etc., the court below's judgment against the defendant

The necessity of medical treatment and custody at the time and the risk of recidivism is recognized.

Application of Statutes

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

Article 164(1) of the Criminal Act (the occupation of each suspend building and fire prevention, each type of limited imprisonment), Articles 175 and 164(1) of the Criminal Act (the occupation of the suspender building and fire prevention reserve)

1. Mitigation of mental disorders;

Articles 10(2) and 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes against a victim Kim ○, who has the largest punishment and punishment)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Medical treatment and custody;

Article 2 (1) 1 of the Medical Treatment and Custody Act

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty-two years; and

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crimes and concurrent crimes: Each current building or fire-prevention;

[Determination of Punishment] General Criteria for Fire-Fighting Crimes, Fire-Fighting such as suspender buildings, etc. and Fire-Fighting such as Public Structures, etc. (Type 1)

【Specially Convicted Persons】 Mitigation elements: A mentally ill-incompetent (no one shall be responsible) and a self-denunciation

Aggravations: serious damage or serious damage to the victim;

case of giving rise to

[General Aggravation] Aggravations: planned crimes

[권고영역 및 권고형의 범위] 기본영역 : 징역 2년 ~ 5년(특별양형인자 중 감경요소 가 가중요소보다 많으나, 앞서 본 바와 같이 피해자 김○0의 집을 전소시키고, 피해자 김⑨0, 박◎◇에 대하여는 반복하여 범행을 저지르는 등 피해자들에게 야기한 재산 적 · 정신적 피해가 심각하므로 그에 따른 위 가중요소를 무겁게 평가할 수밖에 없고 , 그러함에도 피고인은 자신의 잘못에 대하여 그다지 반성하는 태도를 보이지 않고 있으 므로 그에 따른 감경요소인 위 자수를 제한적으로 평가할 수밖에 없는바, 행위책임의 원칙에 따라 행위 인자인 위 가중요소와 행위자/ 기타 인자인 위 감경요소를 종합적으 로 고려하여 권고영역을 기본영역으로 정함 )

(b) Scope of recommending punishment after handling multiple crimes: Two to seven years of imprisonment (in the case of the above, one-half of the upper limit of the first concurrent crime shall be added to the upper limit of the basic crime, and in the case of the present state building and fire-prevention, the sentencing criteria shall not apply, but the lower limit shall apply to the present state building and fire-prevention crimes, which are concurrent crimes with the above present state building and fire-prevention crimes to which the sentencing criteria apply).

3. Determination of sentence: Three years of imprisonment; and

Based on the judgment on the above assertion of unfair sentencing, the punishment on the defendant shall be determined within the scope of the recommended sentencing guidelines set forth in the above guidelines.

The acquittal portion

The summary of this part of the facts charged on the attempted murder and the preparation for murder is that the defendant committed the principal building, the crime of fire prevention and the crime of the principal building and the crime of the fire prevention in the judgment below of the victim's crime of murder.

However, as examined in the prosecutor's assertion of mistake of facts, it cannot be deemed that the defendant had had had the intent to commit murder against the victims at the time of stopping the present building and the present building and the present building and the preliminary fire prevention in the judgment of the court.

Therefore, each of the facts charged above shall be pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime, but with regard to each attempted murder, so long as it is found guilty of each of the crimes of fire-fighting of the present state building and the crime of fire-prevention in the holding that there is an ordinary competition relation, and the crime of fire-prevention of the present state building and the crime of homicide in the holding

(Presiding Judge)

New Eastern Constitution

Isi-Name