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(영문) 부산고등법원 (창원) 2014.04.23 2014노30
살인미수등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for five years.

Reasons

1. Summary of grounds for appeal;

A. The punishment sentenced by the lower court (four years of imprisonment) is too unreasonable.

B. The above sentence imposed by the prosecutor by the court below is too uneasible and unfair.

2. The decision shall be made ex officio prior to any judgment on the grounds for appeal by both parties.

Article 41 of Part II of the Criminal Code provides for the return and delivery of stolen property acquired through a crime of property (see, e.g., Supreme Court Decision 2004Do353, Apr. 16, 2004). Article 333 of the Criminal Procedure Act provides for the return and delivery of stolen property.

However, according to the evidence duly adopted and examined by the court below, the defendant is only found to have committed each of the crimes of this case using the seized knife 2 knife (No. 1 and No. 2) and the above knife was not acquired due to property crimes.

Although the above food blades cannot be deemed to be the price for the disposal of stolen goods or the stolen goods, they cannot be returned or delivered to the victim C, the lower court ordered the victim C to return them. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine on the requirements for return, thereby adversely affecting the conclusion of the judgment.

3. Accordingly, the judgment of the court below is reversed under Article 364(2) and (6) of the Criminal Procedure Act without examining the two parties' assertion of unfair sentencing, and it is again decided as follows.

- The reasons used again due to reversal - Criminal facts and summary of evidence recognized by this court and summary of evidence are as stated in each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article 254 of the Criminal Act and Articles 250 (1) (the attempted crime and the choice of limited imprisonment) of the Criminal Act concerning criminal facts, and Articles 3 (1) and 2 (1) 3 of the Punishment of Violences, etc. Act.

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