(영문) 서울고등법원 2019.10.24.선고 2019노1675 판결

At the time of committing murder in the case of 2019Gohap200 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the Defendant used a stroke-mm which is exempted from water at the time of committing the crime of thief and uneasiness, and had weak mental fissionability and decision making ability to change things to that degree.

2) Unreasonable sentencing

The punishment sentenced by the court below (25 years of imprisonment) is too unreasonable.

B. Inspection (unfair form)

The above-mentioned sentence sentenced by the court below is too uneasible and unfair.

2. Determination

A. Determination as to the Defendant’s claim of mental disability [2019Gohap200]

1) The judgment of the court below

In light of the following facts and circumstances which can be recognized by the evidence duly adopted and investigated, namely, the background, means and methods of the crime, and the defendant's behavior before and after the crime, the defendant and his defense counsel did not have the ability to discern things at the time of the crime and did not have the ability to make a decision. The judgment of the court below was affirmed as follows. (1) 2)

In addition to the above facts and circumstances, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the lower court’s aforementioned determination is justifiable.

Therefore, the defendant's argument of mental disability is without merit.

(1) From February 19, 2018 to January 17, 2019, the Defendant was provided with emuliating and emuliating scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics and other mixed scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics and other mixed scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopicsss

However, given that the Defendant, at the beginning, was given a prescription with the depression and an in-depth interview, only prescribed the same kind of medicine by prescribing the same kind of medicine at another hospital and did not have received any in-depth interview (Article 191). In addition, the Defendant was hospitalized in a Z hospital while complaining of friendly, uneasiness and sacopic insects, but there was no opinion that additional diagnosis or treatment of the Defendant’s state, other than the above symptoms complaining of the Defendant, was needed (Article 147-154). In light of this, it is difficult to conclude that the Defendant’s situation at the time was serious enough to cause a mental fission.

(2) There is no objective evidence that the defendant, in addition to the defendant's statement, used strokem, etc. immediately before the crime is committed.

At a level of 6 to 7:0 p.m., the Defendant left at one’s own room when the victim was absent due to weather conditions, and the Defendant had been living again from 5:0 p.m. to 9:0 p.m., and in the process, the Defendant took drugs prescribed by Xneal spirit and Council members at one time. Of these, the ingredients such as stroke-m were taken only when he stroke-m was taken. However, on the day of this part of the crime, the Defendant did not explain the reasons why the Defendant stroke-m, which was stroke-m, stroke-m, was strokeed.

Even if the Defendant used the stroke-m immediately before the crime in this part, there is no evidence to deem that there was symptoms of the stroke-m, etc. similar to this part of the crime, in the process of consultation with the doctor, or hospitalized treatment, even if the Defendant used the stroke-m, etc., as seen earlier.

In light of this, the possibility that this part of the crime was caused by side effects such as strokemm is very low.

③ The Defendant stated that, during the first interrogation of the suspect conducted on the day of the crime, the police “Before committing the crime, she returned to the police that she died of she.” (Evidence 129), and during the third interrogation of the suspect, the Defendant stated that “after her mother returned to his/her mother on September 2017, 201, her visit the hospital was due to her request for refund” (Article 417). However, as seen earlier, there is no evidence to deem that the Defendant had consistently complained of such her symptoms during the first interrogation of the suspect, or received counseling and treatment accordingly. According to CCTV images at the time of committing the crime, the Defendant did not appear to have been aware of the victim’s surrounding behavior, and that he/she did not return to the victim’s back to the first interrogation of the suspect, and that he/she did not return to the victim’s back to the first interrogation of the suspect’s back during the first interrogation of the suspect.

⑤ In addition, the Defendant returned to his own room immediately after the commission of the crime and then stolen the cell phone and the wall to the place of the victim (No. 20-26). The Defendant stated that the Defendant had the president who had the seat of the president because it is necessary to use the check card in the first interrogation process for the police (No. 131). In addition, the Defendant went to the place where approximately 1 hour and 20 minutes away from the scene of the crime and sent it to the entrance. During that process, the cellular phone of the stolen victim was laid in the front of the restaurant in front of the restaurant, and took all of his cell phone to the offender (No. 12913-2). In light of the above, the Defendant used the check card that he had to go through the first interrogation process for the first interrogation of the police (No. 131).

6) According to the results of the mental appraisal conducted by the court below, the intelligence of the defendant is "average" level, and there was no symptoms that can be seen as a scopic disorder, such as damage to the actual verification ability in the process of the year, and it was diagnosed that there was no significant physiological change or recognition activity due to the symptoms, and there was no significant significant factors in the content of the accident, such as there was no significant concentration of attention, nor clinical significant factors in the contents of the accident, etc. (Gong189-190).

B. Determination on the assertion of unfair sentencing by the defendant and prosecutor

The facts of each of the crimes of this case are recognized and reflected by the Defendant. The Defendant had been treated with mental illness, such as depression, unstable disorder, and sacrife, etc. from the past. However, even in the murder crime of this case, the above disease of the Defendant seems to have affected the extent.

These points are favorable to the defendant.

However, in the case of murder in 2019 High 200 cases and thief in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the defendant was aware of his/her crime, such as working as a general secretary of the Institute of Public Notice, and the victim, who is the owner of the Institute of Public Notification, could report the occurrence of his/her crime. The victim prepared knife in his/her room and knife two times later, 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.

In light of the above legal principles, the circumstances alleged by the Defendant and the Prosecutor as the elements of sentencing were already revealed during the hearing of the lower court, and there was no particular change in circumstances that may be the conditions of sentencing after the sentence of the lower court was rendered. In addition, considering the circumstances in the grounds of sentencing, the Defendant’s age, character and behavior and environment, circumstances after committing the crime, the circumstances after the crime, the sentencing factors of the lower court, and the opinions on the sentencing expressed by jurors at the lower court that was conducted as participatory trials, including the sentencing guidelines of the Supreme Court Sentencing Committee, and the sentencing factors indicated by jurors at the lower court that were held as participatory trials, it is reasonable to respect the lower court’s sentencing since it was conducted within the reasonable scope

Therefore, each of the defendant and prosecutor's arguments on unreasonable sentencing is without merit.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.