In a case where the Defendant was indicted for violating the former Punishment of Violences, etc. Act (collective, deadly weapons, etc.) on the ground that he driven by another driver while driving a motor vehicle, who driven the motor vehicle, driven the motor vehicle in front of the other driver Gap and moved the motor vehicle behind the right side, and emitted the bomb using the bomb gun to the right side, the case holding that “non-carbon firearms and guns” constitutes “hazardous articles” under Article 3(1) of the same Act.

In a case where the Defendant was indicted for committing a violation of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014) (collective, deadly weapons, etc.) on the ground that he was overtaken by another driver on the ground that he was in danger of other driver Gap while driving a motor vehicle, he operated the motor vehicle in front of the other driver Gap's vehicle, replaced the vehicle from the right side to the right side, and emitted the non-carbon with the non-carbon gun to the right side, the case reversed the judgment of convictioning the Defendant on the ground that the non-carbon gun was not manufactured for the purpose of killing and destroying it, but with the gross eggs (weight 0.2g and diameter 6m in diameter) as well as plastic material; however, it was similar to the actual gun and the external eggs can be emitted at a considerable rate of time, and the occurrence of injury is sufficiently possible, and it constitutes "a total danger" of Article 1 (1) of the same Act and constitutes "a total danger" of Article 3 (1) of the same Act.

Article 260(1) of the Criminal Act; Articles 2(1)1 and 3(1) of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014)

Defendant

Prosecutor

Lee Dong-won et al.

Suwon District Court Decision 2014Dadan2911 decided November 25, 2014

The judgment of the court below (including the part not guilty in the grounds) shall be reversed.

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Seized cap T29598M 1(No. 1) and 1 non-carbon 2(No. 2) shall be confiscated, respectively.

1. Summary of the grounds for appeal (as to the acquittal of reasons in the original judgment),

The Defendant: (a) opened a window after replacing the vehicle line with a sudden broke; (b) opened a window with a non-carbon gun toward the victim’s vehicle; and (c) launched the bomb to fit the vehicle; and (d) the victim was placed in a situation with a significant risk of traffic accidents; and (b) it is obvious that the victim was in danger of traffic accidents; (c) it was an act of causing the victim to feel any danger to life or body. Nevertheless, the judgment of the court below which acquitted the Defendant of the crime of violating the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) on the ground that the total amount of b

2. Determination

A. The judgment of the court below

In light of the following legal principles, namely, whether an article constitutes a “hazardous substance” as provided by Article 3(1) of the Punishment of Violences, etc. Act should be determined by whether the other party or a third party could feel any danger to life or body when using the article in light of social norms (see, e.g., Supreme Court Decision 2010Do930, Apr. 29, 2010). Based on the legal principles, the lower court determined that the following circumstances were not manufactured for the purpose of killing or destroying the body of the victim, i.e., toyy used by the Defendant; ii) the total body of the Defendant did not change its function by making it difficult to launch by improving or altering the body of the victim; iii) the Defendant’s use of the article as a very dangerous substance, such as plastic substance, is merely 0.2g of the Defendant’s launched and non-explic substance, and thus, it is reasonable to see that the Defendant’s body was not exposed to the victim’s body as well as the body body of the victim.

B. Judgment of the court below

1) In Article 3(1) of the Punishment of Violences, etc. Act, the term “hazardous articles” includes all dangerous articles that can be widely used to inflict harm on human life and body even if they are not deadly weapons. Thus, as long as they were originally made for the purpose of killing and damaging human body, as well as blades, bags, glass bottles, various tools, automobiles, etc. made for other purposes, and animals, etc. used to inflict harm on human life and body as well as chemical drugs or dead animals are used to inflict harm on human life and body, the term “hazardous articles” in this Article includes not only possession but also widely used to carry such articles (see, e.g., Supreme Court Decision 2002Do2812, Sept. 6, 2002). Meanwhile, as long as they possess dangerous articles, such as dangerous weapons, etc., intended to be used at the scene of crime at the scene of crime, they should be perceived or actually used by the victim as long as they were possessed by their body (see, e.g., Supreme Court Decision 2004Do14.

2) In light of the above legal principles, in light of the following circumstances revealed by the evidence duly admitted and investigated by the court below, the Defendant’s “non-carbon firearms and their non-carbon guns” used as the means of assault against the victim while driving a motor vehicle at a retaliation shall be deemed to constitute “hazardous articles” under Article 3(1) of the Punishment of Violences, etc. Act.

The Defendant (Nam, South, and 35 years old) was driving as shown in the facts charged, and the driver’s vehicle of the victim (Seoul, and 33 years old) kid the Defendant’s liquid car in front of the victim’s driver’s vehicle, string the vehicle in front of the victim’s driver’s vehicle, and then rapidly changed the vehicle to the right side of the victim’s vehicle, string the Defendant’s driver’s seat with the driver’s seat window, string the victim’s seat, string the string of the victim’s vehicle, taking the driver’s seat, and string the non-carbon 7 to 8, and string the string of the victim’s vehicle.

(B) The instant victim reported the 112 crime to the effect that “the Defendant was damaged by the Defendant’s aforementioned retaliation operation and the emission of shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-

Although non-carbon firearms used by the defendant caused a disaster are not manufactured for the purpose of killing or destroying, their total eggs (weight 0.2g, diameter 6m) are also plastic materials. However, it is deemed that the occurrence of injury can be sufficiently possible if it is suitable for the gas station, such as snow, booming, and neck, if it is similar to the actual gun and external shape, it is possible to smoke in a considerable speed, and if it is directly shocked on the inside.

Even if the Defendant’s bruth gun was not directly contacted the victim’s body due to the victim’s early windows, if the Defendant bruthed the Defendant’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s breath-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s bruth-man’s b.

Article 3(1) of the Punishment of Violences, etc. Act means a direct exercise of physical force against a person, and does not necessarily require direct contact to his/her body. Even if he/she carries dangerous objects and the other party did not recognize the existence of such dangerous objects, the crime of violation of Article 3(1) of the Punishment of Violences, etc. Act is established.

3) Therefore, the judgment of the court below which acquitted the Defendant on the charge of this case, even if it is sufficiently found without any reasonable doubt, is erroneous in the misapprehension of legal principles as to "hazardous goods" under Article 3 (1) of the Punishment of Violences, etc. Act, or by misunderstanding facts, which affected the conclusion of the judgment, and the prosecutor's assertion pointing this out is

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is entirely reversed in accordance with Article 364 (6) of the Criminal Procedure Act (the part of conviction is also reversed when the original judgment related to the single crime is also reversed), and the following judgment is rendered again after pleading

At around 19:00 on July 14, 2014, the Defendant: (a) driven a 47-lane motor vehicle in front of the Jindo-si ( Address omitted); and (b) proceeded along two-lanes in Seoul direction on the (vehicle No. 1 omitted); (c) followed the victim’s cargo vehicle in front of the above vehicle on the ground that the victim overtakens his/her vehicle while driving (vehicle No. 2 omitted); and (d) followed the brac in front of the above vehicle on the ground that the victim overtakens his/her vehicle while driving (vehicle No. 2 omitted); (c) replaced the vehicle along the right side of the above vehicle, and (d) launched the victim by launching the 7-8 bitra as a non-carbon weapon, which is an object dangerous to the victim’s above vehicle.

1. The defendant's partial statement in the first trial record of the court below;

1. Police statements prepared by the Nonindicted Party

1. Report on investigation by the police (Analysis of vehicle booms);

1. Police seizure records;

1. Photographs of seized articles;

1. Relevant legal provisions concerning criminal facts;

Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, and Article 260(1) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Compensatory Consideration)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Scope of applicable sentences: One year to 30 years;

2. Scope of recommended sentences determined by the sentencing criteria; and

[Determination of Punishment] Violence, Special Violence, Type 6

【Special Convicted Person】

[Recommendation Scope of Imprisonment] Basic Area (Fe.g. imprisonment between six months and one year);

[The scope of the revised sentence of sentence] Imprisonment of one year to 10 months (Considering the lowest limit of the applicable sentence in law);

3. Determination of sentence;

In light of the contents and methods of the violent crime of this case, the crime of this case, which was committed by the defendant, is not easy in light of the following factors: (a) there is a high risk of the act; (b) there is a history of criminal suspension of imprisonment with prison labor for the same kind of crime in around 1995; (c) there is no serious physical damage or traffic accident to the victim; (d) there is no contingent crime; (e) there is a deposit of KRW 1 million in cash for the victim in the trial; (e) there is no special punishment power after 2005; and (e) there is a family member with dependents; and (e) there are unfavorable conditions to the victim (the violent crime of this case committed by the defendant). The crime of this case may cause a traffic accident beyond violence against the victim; and (e) there is a history of criminal suspension of execution of punishment for the same crime in around 2012; (e) there is no criminal punishment authority for the victim; and (e) the motive, motive, and extent of the crime of this case; (g) the motive and circumstances of the sentencing of this case;

Judges Lee Jin-young (Presiding Judge)