Defendant

Prosecutor

Freeboard (prosecution), Yang Jae-young (Trial)

Attorney Yu Sung-han (Korean)

Suwon District Court Decision 2014Gohap2984 Decided October 24, 2014

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The act of launching an air gun for the purpose of threatening a person is by itself realizing the typical risk of a gun called a threat of human life, and thus using a gun permitted for the purpose of harmful water for any purpose other than the purpose of using it. Therefore, even though it is apparent that Article 17(2) of the Control of Firearms, Swords, Explosives, etc. Act (hereinafter “Guns Control Act”) has been violated, the lower court acquitted the Defendant of this part of the facts charged. The lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion

B. Unreasonable sentencing

The punishment sentenced by the court below (six months of imprisonment, one year of suspended execution, one year of community service, 40 hours) is too unhued and unfair.

2. As to the assertion of mistake of facts and misapprehension of legal principles

A. Summary of this part of the facts charged

A person who has obtained permission to possess a gun shall not use the gun except for the purpose of use permitted or there is any justifiable reason.

그럼에도 피고인은 2014. 4. 28. 19:15경 화성시 (주소 생략)에 있는 ○○식당에서 공소외 1(대판:공소외인)에게 “총으로 쏴 죽인다.”라고 말하며 유해조수 용도(허가번호 : 90135)로 허가받아 보관 중이던 공기총을 꺼내어 들고 총구가 하늘로 향하자 1회 격발하여 공소외 1(대판:공소외인)을 협박하는 용도로 사용하였다.

B. The judgment of the court below

The lower court: (a) it is reasonable to interpret penal provisions as strictly; and (b) excessively expand the meaning of penal provisions to the disadvantage of the defendant is contrary to the principle of no punishment without the law and thus not permitted (see, e.g., Supreme Court Decision 2012Do4230, Nov. 28, 2013); (c) the prior meaning of “use” is “for certain purposes or functions;” (b) it is reasonable to limit the use of guns by means of a shocking method; and (c) it is reasonable to interpret that the use of guns constitutes “use” might excessively wide range if they are included in other cases; (c) it is separate from the “use of guns, etc.” on guns, etc.; and (d) it is deemed that there is no evidence to acknowledge the Defendant’s violation of Article 17(1) and (3) of the Guns Control Act, including cases where there is no other evidence to acknowledge the Defendant’s use of guns or guns in compliance with the aforementioned penal provisions.

C. Judgment of the court below

In light of the records, the above judgment of the court below is just, and there is no error of law by misunderstanding facts or by misunderstanding legal principles, which affected the conclusion of the judgment.

Therefore, this part of the prosecutor's argument is without merit.

3. As to the assertion of unreasonable sentencing

The crime of this case was committed by the Defendant who brought about a dispute with the victim, and brought about a threat to the victim, and caused the threat of the victim, which is very poor, and even if the Defendant was aware of the fact that the air gun was not charged, it appears that the fear of the victim’s fear was reasonable due to such intimidation, and even in light of the whole society, there were unfavorable factors for sentencing, such as intimidation using firearms, etc.

However, in full view of the following circumstances: (a) the Defendant shows the attitude of recognizing and reflecting the Defendant’s criminal act; (b) the Defendant agreed upon with the victim; (c) the Defendant was sentenced to the suspension of the sentence of a fine; and (d) the Defendant’s age, character and conduct, environment, details and contents of the crime; and (c) other circumstances that form the sentencing conditions specified in the instant records and arguments, such as the circumstances after the commission of the crime, it is difficult

Therefore, the prosecutor's assertion on this part is without merit.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jae-nam (Presiding Judge)