2017No3644 Injury by heating explosives

A

Both parties

Park Jong-young (prosecution) and crypists (public trial)

Law Firm B, Attorney C, D

Seoul Western District Court Decision 2017Gohap235 Decided November 22, 2017

April 25, 2018

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

In addition, it is not manufactured for the purpose of explosion, and there is no power to force many people to kill by explosions equivalent to explosives. Thus, it does not constitute an "explosive object" under Article 172(1) of the Criminal Act.

① citing Supreme Court Decision 201Do17254 Decided April 26, 2012, the lower court determined that the instant case constitutes “explosive object” by citing the Supreme Court Decision 201Do17254, based on the important criteria as to whether the occurrence of specific risks to human life, body, or property may be caused. However, the Supreme Court did not state such criteria, and only stated the criteria for determining “explosive object” as stipulated in Article 119(1) of the Criminal Act. Thus, the lower court should not determine that the instant criteria alone fall under “explosive object”.

② The phrase “explosive substance” under Article 172(1) of the Criminal Act refers to an explosive substance manufactured for the purpose of explosion, even if it is not a explosive substance, which has a destructive power to the extent that it may cause death to many people due to explosion similar to that of the explosive substance. The phrase “boil and high-pressure gas” under the foregoing provision includes very high combustible substance, and thus, includes “boil and high-pressure gas” and thus, includes very high-quality inflammable substance that may cause large explosion depending on the use thereof.

③ However, the instant tampler was made entangled without strong sealing the powder or tamper itself. As a result, the internal pressure increased due to the ignitioning of powder, and there was no lid in which explosion (explos, explosion, breadth, scattering, etc.) or things were emitted. The injury suffered by the victim is merely that the victim suffered pictures by burning powders. The lower court concluded that the explosion power of the instant tamper was weak due to external factors, such as temperature and damp, and is unlawful as fact-finding without any objective grounds.

2) Unreasonable sentencing

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

(b) An inspection;

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

2. Judgment on the defendant's misconception of facts or misapprehension of legal principles

A. The judgment of the court below

As to the Defendant’s assertion to the same effect as in the trial of the political party, the lower court determined that, in full view of the following circumstances acknowledged by the evidence duly admitted and investigated, the crime of Article 172(2) of the Criminal Act was established as long as the Defendant tampers in the instant case constituted “explosive substance” and the Defendant tampers in the instant case inflicted an injury on the victim.

① Article 172(1) of the Criminal Act provides that an explosive substance may cause specific danger to human life, body, or property by burning an explosive substance as one of the crimes of fire and fire extinguishing. As such, in determining whether an explosive substance constitutes an explosive substance, it is an important standard to determine whether the substance may cause specific danger to human life, body, or property. Article 172(1) of the current Criminal Act provides only boiler and high-pressure gas as an example of explosive substance. However, Article 172(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 195) provides only the boiler, high-pressure gas, and Article 172(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) provides for a specific danger to human life, body, or property. In light of the history of the provision, location or structure of the provision, and protected legal interest of the same, if any substance per action itself disturbs the public safety, or its specific danger to human life, 20.

② 이 사건 텀블러의 구조는, ㉠ 그 안에 폭죽에서 추출한 흑색화약 약 70g과 나사 500~700개를 집어넣어 텀블러의 내부를 절반 정도 채우고, ㉡ 발열체인 철수세미 가닥 이 연결된 전선을 텀블러 내부에 넣은 다음, ㉢ 위 전선을 텀블러 밖으로 꺼내 건전지와 수은전지에 각각 연결하여 글루건으로 텀블러의 뚜껑을 용기에 접착시켜 그 외부를 절연테이프로 감은 후, ㉣ 전선이 연결된 다른 쪽 건전지 끝에 또 다른 전선을 자석에 연결하고, ㉤ 텀블러를 종이박스에 넣은 상태에서, ㉥ 피해자가 종이박스를 열면 자석과 종이박스에 연결된 낚싯줄이 당겨져 자석을 수은전지에 닿게 함으로써 전류를 흐르게 하고, ㉦ 그 전류로 철수세미가 발열되어 텀블러 안에 있던 화약이 점화되는 원리로 고안되었다. 이 사건 텀블러는 일반적인 폭발물의 구성요소에 해당하는 폭발을 일으키는 물질인 화약, 용기, 기폭장치가 모두 포함되어 있을 뿐만 아니라, 이 사건 텀블러 안에 화약을 넣고 뚜껑과 용기를 접착시켜 내부압력을 높이기까지 하여 경우에 따라서는 강한 폭발력이 발생할 수도 있다.

③ In fact, the physical activity of the victim, as seen above, of the structure intended as the heater, was not opened at the first time. The key lid of the instant locker was lided from the pressure generated inside the locker, and later, the internal pressure was reduced, and only rapid combustion occurred from the remaining powders. This appears to have been done by inserting the instant shocker’s body for a considerable period of time with a high temperature high temperature, carrying it in a white package, and carrying it in the body of the female Defendant, and then the temperature of the locker was high. In other words, it seems that there was an error that the lid and the locker’s lid, which was attached to the lid and the container of the locker, was weakened. In other words, continuous explosion of explosion, it appears that the internal pressure of the instant case, not from the outer pressure, should have been seen to have occurred, and it appears that there was an internal and external pressure of the instant case. Meanwhile, it appears that the external pressure of the instant case was more serious.

④ In an investigative agency, the investigative agency made a tamper using the following methods, fitted a tamper at a place less than one meter away from the tamper’s coordinates and tamper, and tested the explosion that appeared in that tamper by cutting a tamper and cutting it.

A person shall be appointed.

⑤ In light of these circumstances, the quantity of powders inserted by the Defendant in the instant tampler appears to have been sufficient to cause explosion. Moreover, considering the fact that there seems to be a high possibility of serious or serious explosions depending on external conditions, such as glusing lids and containers in contact with the instant tamper, maintaining the contact power with the exhauster, etc., the instant tamper itself itself has a very strong character that may cause specific danger to human life, body, or property by blasting.

B. Judgment of the court below

In full view of the following circumstances, in light of the evidence duly adopted and investigated by the court below and the records of this case, it constitutes a "explosive substance", and since the victim was injured due to a power shock by explosion action of tacker as stated in the facts charged, it shall be deemed that Article 172 (2) of the Criminal Act is established against the defendant. The judgment of the court below to the same purport is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles.

① The purport of the Supreme Court Decision 201Do17254 Decided April 26, 2012, which was presented on the ground that “the instant tampler constitutes explosive material” is only an explosive material that can cause direct and specific danger to people’s life, body, property, and public safety or peace due to the threat of explosion or the scattering of explosion, etc. Therefore, whether certain material constitutes explosive material under Article 119(1) of the Criminal Act shall be determined based on whether it has high explosive capacity to the extent that its power of explosion itself can disturb the public peace. However, “explosive material” under Article 172(1) of the Criminal Act does not constitute “explosive material” under Article 119(1) of the Criminal Act, but it does not constitute “explosive material” under Article 172(1) of the Criminal Act. In other words, it does not constitute “explosive or explosive material” under Article 119(1)12 of the Criminal Act, even if its physical force or force.

② The Defendant stated, consistently from the investigative agency, that he produced the instant tamper with the intent to induce explosion. Since the instant tamper’s structure also was designed to extinguish powder by means of electric power, and can be emitted by an internal pressure due to a sudden blasting of the container due to internal pressure, the instant tamper itself itself ought to be deemed to have the possibility of explosion and scattering. The National Institute of Scientific Investigation and Investigation determined that the instant tamper’s external appearance form, internal structure, and ingredients verification of powders used, testing on explosion force, etc. was “a private explosive in the form of adding steel duty, tamper, self-fluor, and tamper’s location (Evidence No. 796 of evidence record No. 196 of the Act).

③ On the other hand, the Defendant asserted that the instant tampler made it impossible for the Defendant to play a role as explosives from the beginning to the point of view, and that there was no explosion that could be seen as an explosion at the time when the victim was injured. However, according to the circumstances where the victim was injured, it cannot be readily concluded that there was no explosion effect on the instant tampler. In other words, the Defendant’s chemical explosion, along with the instant twebbler’s sound that “the instant twebbbbler’s profit,” caused an internal pressure to reduce the inner pressure of the powder in the twebler, and that the instant twebler’s lid, which caused a sudden combustion from the remaining powder after the after the after the day, constituted “the victim’s twebler’s twebler’s life or twebr’s body injury, such as head explosion, image explosion, etc., and the Defendant’s physical injury by means of force.” In addition, it should be deemed that the Defendant’s physical injury and danger of the Defendant’s body force.

④ The lower court asserted that the lower court’s determination that the Defendant’s impact on the internal pressure (defluence density, etc.) of the instant tamper was unlawful, contrary to the appraisal result of the National Institute of Scientific Investigation and Research (the force of explosives does not change by force by means of explosion location, weather, time, etc., such as interior or exterior, and time. No. 445 of the trial record) was unlawful. However, the lower court did not simply mention the external factors that are not relevant to the type, density, and weather of explosive material, but rather merely mentions the external factors that are irrelevant to the type and density of explosive material, and thus, it is difficult to view that the lower court erred in light of the above appraisal result. Moreover, the lower court did not have determined that the lider’s impact or risk was extremely destroyed to the extent that it could not constitute explosive material, as seen earlier, and that it constitutes an explosive material as stipulated in Article 17(1) of the Criminal Act.

The defendant's assertion of mistake and misapprehension of legal principles is without merit.

3. Determination on the grounds of unfair sentencing by both parties

The crime of this case is a situation unfavorable to the defendant in that the defendant, who is a guiding professor at his graduate school, frequently received a brut in the course of preparing research papers, etc. to inflict bodily injury on the victim who experienced the destruction, and produced the brut, an explosive object, after going through the preparation process for a period exceeding the brus, and the defendant's intent, as intended, sold the brub in this case, causing bodily injury to the victim, and the nature of the crime is not very good. The defendant's act exceeds the socially acceptable range, and there is a need for punishment corresponding to the result. The defendant attempted to inflict bodily harm on the victim. The defendant committed the crime of this case by inserting a brut in the water purifier installed within the victim's laboratory even before the crime of this case, and attempted to inflict bodily harm on the victim. The defendant committed the crime of this case against whom it did not want to do so, and it seems necessary to prevent similar or imitate crimes through strict punishment against the defendant.

However, there is a need to take into account some of the circumstances leading to the instant crime among the Defendant’s primary offenders, due to learning stress and conflict with professors, and there was no significant threat of force at the time of explosion of the instant tacker, the degree of injury suffered by the victim is not serious, the Defendant recognizes the basic facts of the instant crime itself, the victim clearly expresses his intention that he does not want the punishment consistently from the investigative agency, the Defendant deposited five million won for the recovery of damage suffered by the victim, and the Defendant wanted to leave the wife and the principal of the faculty and the principal of the graduate school as well as the university students to whom the Defendant and the victim belong.

In addition, comprehensively taking account of the following circumstances, such as the Defendant’s age, character and conduct, environment, family relationship, motive for committing a crime, means and method of committing a crime, and circumstances after committing a crime, etc., the lower court’s punishment against the Defendant cannot be deemed to be too minor or unreasonable.

Both parties’ assertion of unfair sentencing is without merit.

4. Conclusion

Since the appeal filed by the defendant and the prosecutor is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge shall be appointed and appointed concurrently.

Judges Kim Jae-sung

Judge Park Sung-sung

(i) means burning to the extent that the combustion rate of explosive substances is 300 m/Sgd.;

2) A prosecutor at the time, after the judgment of the said Supreme Court was rendered, was sentenced to a conviction by changing the indictment to a charge of extinguishing explosive substances (Seoul High Court Decision 2012/1204, Jul. 12, 2012) in the reversed and remanded trial (Seoul High Court Decision 2012Do9153, Sept. 27, 2012). Since then, the Defendant filed a new appeal, but the dismissal of the appeal became final and conclusive after being sentenced to a judgment of the Supreme Court (Supreme Court Decision 2012Do9