(영문) 부산고등법원 창원재판부 2013.5.31.선고 2012노335 판결

The Defendant, under the direction of the victim, committed only the intentional injury to the victim, and did not have the intent to kill the victim, was found guilty of the crime of murder by the first instance court. In fact, the lower court erred by misapprehending the fact.

B. Unreasonable sentencing

The punishment sentenced by the first instance court (15 years of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

In the event that the Defendant did not have the intent to commit murder at the time of the commission of the crime, and only there was only the intent to commit an injury or assault, whether or not the Defendant had the intent to commit the crime at the time of the commission of the crime ought to be determined by comprehensively taking account of the objective circumstances before and after the commission of the crime, such as the background leading up to the crime, motive for the crime, type and method of the crime, the nature and repetition of the prepared deadly weapons, the degree of the occurrence of the crime, and the possibility of the occurrence of the result of the death (see, e.g., Supreme Court Decisions 2006Do734, Apr. 14, 2006; 2008Do9867, Feb. 26, 2009

The following circumstances acknowledged by the defendant's legal statement at the trial of the court of the first instance and the evidence duly adopted and examined at the court of the first instance: (i) the defendant found the victim's body in preparation for a knife with a knife; (ii) the victim's right bucks and knife with a knife one time each; (iii) the victim's right knife knife knife knife knife knife knife knife knife knife knife knife knife at the victim's right knife; and (iv) the victim's body knife knife knife knife knife knife knife knife knife knife knif.

Therefore, this part of the defendant's argument is without merit.

B. As to the assertion of unreasonable sentencing

After the crime of this case was committed, there are favorable factors for sentencing such as the fact that the defendant voluntarily attends an investigative agency after the crime of this case, that the defendant reflects his own fault, that the defendant reflects his own fault, that he was sentenced to imprisonment for a violation of the Punishment of Violences, etc. Act on April 17, 1996, and that he was living without a separate criminal record in addition to the punishment of a fine of three times due to the violation of the Road Traffic Act, etc., and that he was living without a separate criminal record, and that he was able to care for his wife and two children in a difficult family form, and that

However, it is also recognized that the defendant was prepared to kill the victim by preparing for knife in advance, and that the crime is very poor due to interview and interview with the method of the crime, the victim's loss of knife life caused by the crime of this case cannot be recovered, and the bereaved family members of the victim also suffered a big mental suffering due to the death of the victim, but did not reach an agreement with the victim or receive a knife.

Considering the aforementioned factors of sentencing and the Defendant’s age, character and conduct, intelligence and environment, criminal records, motive and background leading to the instant crime, the means and consequence of the instant crime, the circumstances after the commission of the crime, etc., the sentence sentenced by the first instance court is deemed appropriate, and it is not deemed unfair because it is too unreasonable (it is difficult to view that such circumstance is the grounds to impose a sentence imposed on the Defendant on the Defendant, even if the Defendant resulted in the instant crime according to another person’s instruction, as alleged in the first instance trial).

Therefore, this part of the defendant's assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.