2014Gohap856 Violation of the Punishment of Violences, etc. Act (a group or chest)

An injury by light;

○○ (63 - 1), self-business

Kim Jong-ok (Court Prosecution), Kim Jong-ok, Preventive, and Kim Jong-chul (Court Decision)

Law Firm Members

Attorney Hah-soo, Lee Ji-hee

April 14, 2015

A defendant shall be punished by imprisonment for not less than four years and six months.

One knife (No. 1) and one knife (No. 2) shall be confiscated, respectively.

Criminal facts

From August 2013, the Defendant: (a) operated a restaurant under the trade name of, from around 1, 2013, the victim Jung-gu Seoul Special Metropolitan City (the 62 years of age) in Yeonsu-gu, Incheon Special Metropolitan City (hereinafter referred to as the “Dong-dong”); (b) and (c) Park-won Special Metropolitan City (the 62 years of age), and (d) the building owned by the married couple; and (b) operated the restaurant; (c) but (d) did not pay rent due to business depression; and (d) did not file a suit against the victimized couple

1. Violation of the Punishment of Violences, etc. Act (a group, an injury with a deadly weapon, etc.);

On November 14, 2014: around 00, at the front parking lot of the above small restaurant, compulsory execution has been carried out at the request of the victims who won the lawsuit, and the victim's husband and wife divided conversations on the side by the victim's husband and wife. The victim's husband and wife refused a request for extension of the person's body and conducted compulsory execution, determined that the third party's opportunity to receive the premium has been lost by taking a restaurant business license in quantity, and that the defendant's Neow-si car (○○○○○○○○○○○○○○○) operated a dangerous object parked therein, which is a dangerous object that had been parked therein, had the victim go beyond the victim's lusium and go beyond the lusium of the victim who did not get out of the lusium, and thus, the victim's husband and wife suffered injury, such as alute and alinium, etc. requiring medical treatment for about two weeks.

2. Attempted murder;

The Defendant, at the time and place specified in the above paragraph (1), was driving a car in the above manner and left to the victim’s husband and wife. However, the Defendant was willing to kill the victim’s emotional ri and ri-ri in order to show the shock of the victim’s ri-ri and ri-ri and ri-ri.

Therefore, the Defendant, who was in the above car, moved down the victim's own city in front of the day (25 cm in length) while hiding the above car, and moved out to the next parking lot of the building by driving the above car as if he had abandoned the crime, and then moving the car into the next parking lot of the building as if he had moved out of the crime. In other words, the Defendant started the kitchen (12 cm in length, approximately 22 cm in length, about 12 cm in length) from the above car, and came to a part of the kitchen of the victim's own city in front of the city in front of the victim's city in front of the city in front of the victim's own city in order to move out and report it to the victim's own city in front of the city.

As a result, the Defendant attempted to murder the victim Do-dong in order to commit an additional crime by those in the vicinity, but did not commit an attempted injury to the victim, such as "the multi-faceted top of the breast wall," "the other damage to the waste, which is open within the chest dong," and "the other damage to the victim," which was committed by those in the vicinity of the victim.

Summary of Evidence

1. The defendant's partial statement in court;

1. Legal statement of Park △-ri and Cheong-ri in his family;

1. A protocol concerning the examination of the accused by the prosecution;

1. A protocol concerning the examination of each police suspect against ○○○;

1 . 김 , 이◆◆ , 전◁◁에 대한 각 경찰진술조서

1. One food knife (No. 1) and one A (No. 2) respectively, seized;

1. On-site oil photographs, the site pictures of occurrence of the incident, and the images and damages in which the victims of the case had been fixed in order to make up for him/her;

Self-Governing Do governor-Seoul

1. Statement of opinion (Si/Gun/Gu in full), statement of the injury of the victim, and statement of diagnosis of the Do governor in Si/Gun/Gu in full for each victim;

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 254 and 250(1) of the Criminal Act (the charge of attempted murder and the selection of limited imprisonment) , measures such as the old violence, etc.

Article 3(1) of the Punishment Act (Amended by Act No. 12896, Dec. 30, 2014);

Article 2(1)3 of the Criminal Act and Article 257(1) of the Criminal Act.

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act (Crime of homicide)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act.

Aggravation of concurrent crimes with punishment provided for in the crime of violation of the Act (collectively Injury by Deadly Weapons, etc.)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Although the defendant has inflicted a knife knife with knife, he had no intention to murder.

2. Determination:

The intention of murder is not necessarily recognized as the purpose of murder or the planned intention of murder, but it is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to his own act, and its recognition or prediction is not only conclusive, but also an uncertain intention is acknowledged as dolusent intention. In the case where the defendant asserts that there was only no intention of murder or assault at the time of committing the crime, the issue of whether the defendant was guilty of murder at the time of committing the crime shall be determined by comprehensively taking into account the objective circumstances before and after committing the crime, such as the background leading up to the crime, motive for committing the crime, existence of the prepared deadly weapon, type, method of attack, part and repetition of the attack, degree of occurrence of death, etc. (see, e.g., Supreme Court Decision 2008Do9867, Feb. 26, 2009).

이 법원이 적법하게 채택하여 조사한 증거들에 의하면 다음의 각 사정 등이 인정된 다 . ① 피고인은 승용차를 이용하여 피해자 박☆☆에게 상해를 가한 후 , 피해자 정☆☆ 가 피해자 박☆☆의 상태를 살피러 오자 승용차에 있던 가위를 가지고 내렸으나 주위 사람들에 의해 제지당하였다 . ② 그러자 피고인은 승용차에 탑승하여 상황을 살핀 후 다시 승용차에서 식칼을 꺼내어 피해자 정☆☆에게 접근하였다 . ③ 이를 본 피해자 정 ☆☆가 도망갔고 피고인은 식칼을 든 채로 피해자 정☆☆를 쫓아가 당황한 피해자 정 ☆☆가 넘어지자 곧바로 피해자 정 의 어깨 , 등 , 가슴 부위를 수회 찔렀다 . ④ 피고 인은 피해자 정☆☆가 도망가다 넘어져 반항하기 어려운 상황이었음에도 피해자 정☆ ☆의 위에서 식칼을 들고 내리 찔렀다 . ⑤ 피고인은 피해자 정☆☆가 피를 흘리고 발 버둥을 치면서 저항하였음에도 계속하여 칼로 찔러 폐에 직접적인 손상을 가하기도 하 였다 . ⑥ 피고인이 승용차에서 가지고 내려 범행에 사용한 가위 ( 길이 약 25cm ) 와 식칼 ( 총 길이 약 22cm , 칼날길이 약 12cm ) 은 길이가 길고 끝이 예리해서 그 칼날에 피해 자 정☆☆의 신체가 더 깊숙이 찔렸다면 사망에 이를 수도 있었음을 충분히 예견할 수 있다 . ⑦ 피고인이 피해자 정☆☆를 식칼로 찌른 후 즉시 제지당하였고 , 다행히 피해자 정☆☆가 바로 병원에 후송되었기에 목숨을 잃지 않은 것으로 보인다 .

In full view of the circumstances, such as the background of the instant case, the risk of attempted crimes, the level of attack, and the degree of injury, etc., the Defendant may be fully recognized as having committed the murder.

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment with prison labor for up to 3 years up to 45 years; and

2. Application of the sentencing criteria;

(a) First offense (homicide and attempted murder);

[Scope of Recommendation] Type 2 (General Murder) Basic Area ( Imprisonment from April to August 10)

【No Special Convicted Person】

(b) Second offense (in violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc., injured thereby));

[Scope of Recommendation] Form 1 of Habitual Injury, Special Injury Injury by Cumulative Offense: (Special Injury by Habitual Injury, Injury by Cumulative Offense)

h) Basic area of ‘> (2 to 4 years of imprisonment)

【No Special Convicted Person】

(c) The scope of final sentence due to the aggravation of multiple offenses: Imprisonment with prison labor for three years and four months to twelve years; and

3. Determination of sentence: Imprisonment with prison labor for not less than four years and six months; and

Since the crime of murder is a serious crime that infringes upon human dignity, the attempted crime must be punished for the crime. The crime of this case is committed by the defendant using a car, which is a dangerous object, to inflict an injury on the victim Do - Gun -, and the victim - Gun - knife knife knife knife knife knife, and in consideration of the implements and method of the crime, etc. of this case, the crime of this case is very poor. In particular, if the victim - Do knife knife due to the crime of this case, the victim - knife knife knife could lose his life. Despite the fact that the defendant was sentenced to a fine on several occasions due to this violence, the defendant again committed the crime of this case. In addition, the victims want to punish the defendant.

However, the Defendant appears to have committed the instant crime in a contingent manner, as the victims conducted compulsory execution on the restaurant operated by the Defendant, while there was a dispute as to the terms and conditions of the agreement concluded with the victims. Furthermore, while the Defendant denies the intent of murder, it is recognized as a substitute for the instant crime.

In addition, the defendant's age, occupation, character and conduct, family relationship, the circumstances and results of the crime of this case, and all of the sentencing conditions shown in the records and pleadings of this case, such as the circumstances after the crime, shall be determined as the order.

jury verdict and sentencing opinion

1. A verdict of guilt or innocence;

○ Violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, etc.)

- Of the seven jurors, guilty of only one jury

○ Crimes of homicide:

- Of the seven jurors, guilty of only one jury

2. Opinions on sentencing

- 4 years of imprisonment: Six persons;

- 5 years of imprisonment: one person;

For more than one reason, this case against the defendant is judged as ordered through a participatory trial according to his wishes.

The presiding judge shall have jurisdiction over the judge

판사 김샛별

Judges Shin Sung-sung