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(영문) 서울북부지방법원 2012.11.08 2012노982
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The court below found the defendant guilty by misunderstanding of facts, misunderstanding of legal principles, and D's statements without credibility. In so doing, the court below erred by misapprehending of facts or misapprehending of legal principles, and the defendant's act constitutes self-defense.

B. The lower court’s sentence of unreasonable sentencing is too unreasonable.

2. Determination

A. In light of the spirit of the principle of substantial direct examination adopted by the Korean Criminal Procedure Act, unless there are special circumstances to deem that the first instance court’s determination on the credibility of the statement made by a witness of the first instance was clearly erroneous, or in light of the results of the first instance court’s examination and the results of additional examination of evidence by the time of closing argument in the appellate court, maintaining the first instance court’s determination on the credibility of the statement made by a witness of the first instance court is clearly unfair, the appellate court should respect the determination on the credibility of the statement made by the witness of the first instance

(2) After completing the direct examination of evidence, such as the examination of witness with respect to F and D, the lower court found the Defendant guilty on the facts charged of this case by recognizing the credibility thereof. The lower court clearly erred by misapprehending the credibility of each statement made by F and D.

The defendant's above assertion is without merit, since it seems that the judgment of the court below on the credibility of his statement is not significantly unfair.

(3) Considering the method and form of the Defendant’s act of assault, the degree of the victim’s injury therefrom, the developments leading up to the assault and the circumstances before and after the assault, the Defendant’s act does not constitute self-defense under the Criminal Act

B. In full view of all the sentencing conditions indicated in the instant records and arguments of unreasonable sentencing, and the fact that the Defendant had much criminal records related to violence, etc., the lower court.

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