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(영문) 부산고등법원 2019.02.12 2018노708
특정범죄가중처벌등에관한법률위반(보복협박등)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. Summary of grounds for appeal;

A. At the time of committing the instant crime, the Defendant, along with alcoholic beverages, was physically and mentally weak.

B. The lower court’s sentence of unreasonable sentencing (one year and six months of imprisonment) is too unreasonable.

2. According to Article 323(1) of the Criminal Procedure Act, the reasoning of the judgment of conviction ought to be clearly stated in the facts constituting an offense, gist of evidence, and the application of statutes.

Where any one of the reasons for a judgment is omitted while a judgment of conviction is rendered, it shall be a violation of the law that affected the conclusion of the judgment under Article 383 subparagraph 1 of the Criminal Procedure Act and shall constitute grounds

According to the reasoning of the judgment below, the court below found guilty of each of the facts charged in this case, and omitted the description of the part corresponding to the crime of assault in the applicable column of law among the reasons for the judgment, and thus, the judgment of the court below cannot be exempted from reversal due to its illegality.

Despite the above reasons for ex officio reversal, the defendant's assertion of mental disability is subject to the judgment of this court.

3. In full view of the motive, circumstance, and content of the instant crime, method of the commission of the crime, and circumstances before and after the instant crime, which can be revealed by the record of judgment on the claim of mental retardation, it is not deemed that the Defendant did not have the ability to discern things or make decisions at the time of the instant crime.

Defendant’s assertion is without merit.

4. The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

Criminal facts

1. The summary of the evidence is as shown in the judgment of the court below, except that the defendant's oral statement is added.

Application of Statutes

1. The point of interference with business under Article 314 (1) of the Criminal Act and imprisonment with prison labor for the relevant Article of the Criminal Act and the selection of punishment for the crime;

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