(영문) 부산지방법원 2014.7.18.선고 2014고합237 판결

A defendant shall be punished by imprisonment with prison labor for 15 years and a fine of 1 million won. Where a defendant fails to pay the above fine, he/she shall be confined in a workhouse for a period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Seized knife knife (No. 4) shall be confiscated.

An application for compensation by an applicant for compensation shall be dismissed.

Reasons

Criminal facts

1. Gambling;

At around 00:00 on April 12, 2014, the Defendant, along with men who are not aware of F and F names, 5,000 won each by Dog-type card using Chapter 52, and received three card, 100% of Dog-type 100% until Dog-type 100% of Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-type Dog-

On April 12, 2014, the Defendant: (a) around 00:00, at the source of F’s operation in Busan Eastdong-gu, Busan; (b) as he was unable to know about F and his name and was deprived of money, G, the Defendant’s back-to-date, knew of the circumstances, and thereby, said G, the Defendant’s back-to-date, “sing up the gambling scambling”, and the Defendant said, “only because the crisis is not good.”

Accordingly, the victim H(51 years of age) who is scheduled to take over the source of a war was in contact with telephone and was dissatisfied with G while taking the source of a war and taking a bath, and the Defendant was drinking at the main point in and near the source of a war.

The Defendant, while drinking alcohol at the main point, and making a telephone call with the victim, had the victim take a bath, and “Ie feas fe. f. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. at the Defendant’s house located in the Busan Eastdong-gu, Busan.h.h. h. h. h. h. k. h. k.h. k. k.h. k.h. k. h. k.h. k. k.h. k. h. k. for the Defendant, at around 03:0 on April 12, 2014, the Defendant said that “Ie kn.h. h. k.h. h. k.h. h. k. k.h.k.)” from the Defendant kn.

1. The defendant's partial statement and L's legal statement;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Statement F of the suspect interrogation protocol of the police officer, and some of the suspect interrogation protocol of the police officer against the accused;

1. The actual condition survey report;

1. Report on the result of autopsy, and report on the result of inspection by change of history;

1. blades and photographs used for committing the crime;

Application of Statutes

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

Article 250(1) of the Criminal Act (the point of homicide, the choice of limited imprisonment) and Article 246(1) of the Criminal Act (the point of gambling)

The former part of Article 37 and Article 38(1)3 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Dismissal of an application for compensation order;

Article 32(1)1 and (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (the crime of homicide does not fall under the crime subject to a compensation order under Article 25(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and it cannot be viewed to the purport that the application for the instant compensation order

Judgment on the argument of the defendant and defense counsel

1. Determination as to murder intention

A. Summary of the assertion

The defendant and his defense counsel argued that the defendant had a knife and did not have any intention to kill the victim from the beginning.

B. Determination

The intent of murder in the crime of murder does not necessarily require the purpose or planned intention of 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 only no criminal intent of murder or assault 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 guilty of murder at the time of committing the crime shall be determined by comprehensively taking into account the objective circumstances before and after the crime, such as the background leading up to the crime, motive for committing the crime, type of deadly weapons prepared, the part and repetition of attack, and the possibility of causing the death (see Supreme Court Decision 2006Do734, Apr. 14, 2006).

However, the following circumstances acknowledged by the evidence and the record as follows: ① Before the occurrence of this case, the victim salvededed the victim’s knife with the Defendant, misunderstanding that the knife had caused severe humiliation to the Defendant; ② the Defendant salved the victim’s knife with knife at one’s house to the extent that the victim would die and have been salved; ③ the knife’s knife used by the Defendant was 29cc in length and 15cc in knife’s length; ④ the Defendant knife the victim’s left chest (the left part of the knife book, the left part of the chest, and the upper part of the knife’s knife with the Defendant’s upper part of the knife, which would have been seriously damaged at the time of the death of the victim’s chest, and knife into the left part of the lower part.

Therefore, we cannot accept this part of the defendant and his defense counsel.

2. Determination on self-defense

A. Summary of the assertion

The defendant and his defense counsel asserted that the defendant's act constitutes self-defense inasmuch as the defendant was knife with a knife in order for the defendant to feel a threat of his life and to capture the risk, while the victim was listed on the defendant at the time of the instant case.

B. Determination

In a case where it is reasonable to view that an act by a perpetrator was committed with the intent of an attack, rather than with a view to defending the victim’s unfair attack, and that the act was committed against one another, it cannot be deemed self-defense since the act was at the same time an attack (see Supreme Court Decision 2000Do228, Mar. 28, 200). In addition, in order to establish self-defense, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type, degree, method, and method of infringement of legal interests infringed by the act, as well as the type and degree of legal interests infringed by the act of defense. The act of defense as a requisite for establishing self-defense includes not only pure and non-defense, but also anti-defense form, including active anti-defense, but also the act of defense must have considerable grounds for defending the victim’s own or other person’s infringement of legal interests (see Supreme Court Decision 200Do2524, Dec. 25, 192).

However, the following circumstances acknowledged by the evidence and the record, namely, ① if the Defendant walked along L’s body while holding a knife and knife the victim, the victim appears to have fighting with his body in a very short time, but it appears that the Defendant’s knife with the victim’s body was terminated by using the victim’s knife and knife within the very short time, and as alleged by the Defendant, it cannot be seen that there was an assault that may threaten the life of the Defendant, such as taking knife and knife the victim’s knife and knife, before the occurrence of the instant case, the Defendant appeared to have knife the victim’s knife and knife and knife the victim’s body to the extent that the Defendant would not have been flife the victim’s body and knife the victim’s body at the same time.

Therefore, we cannot accept this part of the argument of the defendant and his defense counsel.

1. The legal applicable range of sentencing

(a) Crimes of homicide: Imprisonment with prison labor for not less than five years nor more than thirty years;

(b) Gambling: A fine of not less than 50,000 won but not more than ten million won;

2. Scope of the recommended sentencing criteria (the sentencing criteria for gambling crimes shall not apply).

(a) Determination of types: homicide of Type 2;

(b) Persons who are specially sentenced to punishment: The elements of mitigation;

(d) Scope of recommendation: Imprisonment for not less than seven years but not more than 12 years; and

3. Determination of sentence: 15 years of imprisonment and fine not exceeding one million won; and

4. The reason for sentencing is that: (a) the defendant confessions the crime of gambling in this case and acknowledges his mistake; (b) the victim misunderstanding that gambling is broken by the defendant that caused the instant case; and (c) the victim’s birth who is the bereaved family member (the defendant has been divorced from his wife; (d) the parent has already died) submitted to this court a written agreement containing the content that he would take the wife against the defendant.

However, human life can not be used for any reason for infringing other's life as a valuable value that cannot be altered. Although this case resulted from the misunderstanding of the victim's life, it cannot be held liable for the crime of this case between the victim and the victim. Nevertheless, the defendant did not properly reflect his or her fault because he or she did not commit murder or his act constitutes self-defense, and the defendant has committed a knife with a knife, which is a deadly weapon sufficient to brut his body name, so that he or she can seriously be injured by his or her life. In light of the motive and circumstance of the crime of this case, the criminal act of this case is very heavy in quality of the crime, the defendant has been punished for gambling on two occasions in 203 and 204, and the records and records of his or her criminal records and records of criminal punishment as well as other circumstances revealed in the sentencing guidelines (the sentencing guidelines of this case).