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(영문) 서울서부지방법원 2014.12.04 2014노704
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for two years.

Reasons

1. Summary of grounds for appeal;

A. At the time of each of the instant crimes, the Defendant had weak ability to distinguish things from others and make decisions due to mental illness or drinking, such as a decentralization disorder.

B. Each sentence of unfair sentencing (one and half years of imprisonment of the first instance court, and one year of imprisonment of the second instance court) by the lower court is unreasonable.

2. Prior to the judgment on the grounds for appeal ex officio, the first and second court rendered a separate examination and rendered a judgment of conviction against the defendant, and the court decided to hold a concurrent examination of each appeal case against each of the defendant's appeals.

However, each of the crimes of the first and second judgment is concurrent crimes under the former part of Article 37 of the Criminal Act, and one of the concurrent crimes under Article 38(1) of the Criminal Act should be sentenced within the scope of the term of punishment imposed.

Therefore, each judgment of the court below against the defendant can no longer be maintained.

However, the defendant's assertion of mental disability is still subject to the judgment of this court, despite the above reasons for ex officio reversal, and we will examine below.

3. According to the judgment and pleading as to the claim of mental disability, it is recognized that the defendant was diagnosed with a disease suspected of being a shocked disorder around October 2014, and that he was a drinking state at the time of committing the crime on December 12, 2013.

However, in light of the following circumstances: (a) the motive for each of the instant crimes is clear; (b) the speech and behavior at the time of the commission of violence is specific; (c) the content of the accusation is detailed; and (d) the motive, process, means, and actions before and after the commission of the crime, it cannot be said that there was a lack of ability to discern things or make decisions.

Therefore, the above argument cannot be accepted.

4. Accordingly, each judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, without examining the argument of unfair sentencing, on the grounds of ex officio reversal.

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