Defendant

Prosecutor

Gangwon-il (Public prosecution) and next police officer (public trial)

Suwon District Court Decision 2013Ra581 Decided October 2, 2013

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of the grounds for appeal;

The Defendant’s crime of this case cannot be deemed as an emergency evacuation because the present situation of the danger and the reasonableness of the escape act is not recognized, and it cannot be deemed as an act due to fear, bad faith, interest, or confusion in an unstable situation, and it does not constitute an excessive escape under the responsibility. Nevertheless, the lower court erred by misapprehending the legal doctrine on the emergency evacuation.

2. Determination

A. In the case of “the act of killing an animal in a cruel manner” as provided by Article 8(1)1 of the Animal Protection Act, it is reasonable to view that the act of killing an animal by a cruel method without any justifiable and reasonable reason is the constituent elements of the crime in light of the legislative intent of the aforementioned Act, as the court below properly decided. However, according to each evidence duly admitted and investigated by the court below, the defendant’s sat, which is the damage dog of this case, attacked the Defendant’s satat, and the defendant, who was a tree by using the engine saw, threatened the above engine saw in order to drive away from the damage dog, and caused the crime of this case. Accordingly, according to the above facts of recognition, it is difficult to view the defendant’s act as an act constituting the constituent elements of the above provisions of the Animal Protection Act. Accordingly, the judgment of the court below that acquitted this point is justified.

B. According to each evidence duly adopted and investigated by the court below, the defendant can recognize the fact that he gets off using engine saws and caused injury to the extent that the part of the damaged dog, such as the part of the damaged dog, is cut off, while he saw it as a damage to another person's property. However, the issue of this case is whether there are grounds to justify the defendant's act.

Article 22 (1) of the Criminal Code refers to an act of considerable reason to avoid the present danger to his or another person's legal interests, and in order to constitute "an act of considerable reason", first, the act of escape shall be the only means to protect the legal interests in danger, second, the method of causing the most minor damage to the victim, third, the profit preserved by the act of escape shall be more superior to the profit suffered by it, and fourth, the act of escape must be the appropriate means in light of social ethics or the overall spirit of legal order.

However, in the case of this case, the following circumstances acknowledged by the above evidence, i.e., ① the victim's dog was not likely to attack the defendant on the records of this case, and the defendant also stated at the investigative agency as "I do not attack the defendant's dog 40 pages of evidence" (the 40 pages of evidence records), ② the defendant's dog was combined, or the defendant's dog was not owned by the defendant, and the place of this case where the damage dog was carried out with the machine saw, and the defendant could avoid or move to another place, ③ the machine saw was in itself dangerous things, and even if the machine saw was affected by the mechanical saw, the defendant did not return to the machine saw without the EX, and even if the defendant did not have to protect the victim's body at the time of the first action, the defendant's act of attacking the victim's body could not be seen as having been done by the act of attacking the victim's body by means of an attack, such as an attack or attack.

In addition, inasmuch as there is no evidence suggesting that the damaged dog did not attack the Defendant at the time of the instant case and that the damaged dog had an aggressive tendency in the ordinary sense, the Defendant did the instant saving act due to fear, bad faith, entertainment, or yellow dust under an unstable condition at the time of the instant case, and thus, it cannot be viewed as an excessive escape under Article 22(3) of the Criminal Act.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The Defendant, at around 07:30 on March 28, 2013, destroyed the property of the victim of death on the ground that the Defendant, located in Ansan-si ( Address omitted), carried out by the Defendant, on the grounds that the 2 horse 2 miles, the neighboring victim Nonindicted Party 1, was cated by asking a stat, the Defendant owned by the Defendant, in front of the Yellow-si △△△ movable, was an attack, such as opening a stat. The Defendant: (a) destroyed the property of the victim by cutting off the part, such as a single ma (hereinafter referred to as “damage dog”) equivalent to KRW 3 million in the market value owned by the victim.

1. Partial statement in the original judgment and the trial court of the defendant;

1. Each legal statement of the witness at the lower court by Nonindicted 1 and Nonindicted 2

1. Police suspect interrogation protocol of the accused;

1. On-site photographs, records of the case scene photographs, and photographs;

1. On-site guidance;

1. Previous offense: A written inquiry and inquiry;

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

Article 366 (Selection of Fine)

1. The type to be suspended;

Fines 300,000

1. Detention in a workhouse;

Articles 70 and 69(2)(50,000 won per day) of the Criminal Act

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Taking into account the circumstances to be considered in light of the developments leading to the instant crime)

Of the facts charged in this case, the summary of the violation of the Animal Protection Act is as follows: “The defendant committed an act of killing animals by cutting off the part of the machinery saw which is the victim’s own 3 million won (hereinafter “damage dog”) on the ground that at around 07:30 on March 28, 2013, 200, 200 2 maur, the neighboring victim Non-indicted 1 (art and 2 maur) had been asked about the opening of a dog in front of the Yellow Sea of △△ Movables operated by the defendant in front of the Yellow Sea of the Yellow Sea of △△△ movable operated by the defendant, and 3,000 won in the market price of the victim, 3,000 won in the shape of the machinery saw which was owned by the defendant, and then killed the animals in a cruel manner.” This is not guilty under the latter part of Article 325 of the Criminal Procedure Act, but in so long as it is found that there is no proof of criminal facts as seen in paragraph (a).

Judges Yu Nam-ju (Presiding Judge)