(영문) 의정부지방법원 2015.8.18.선고 2015노1418 판결

A. Compared to misunderstanding of facts or misunderstanding of legal principles, the defendant has "Habitualness" under Article 2 (1) of the Punishment of Violences, etc. Act.

shall not be deemed to have been dismissed.

2) Tagabonds do not constitute “hazardous objects” under Article 3(1) of the Punishment of Violences, etc. Act.

3) It is difficult to see that the Defendant spawndd at the time when he was spawn on the floor at the time when he was spawn, and the Defendant’s above act does not constitute intimidation.

B. Unreasonable sentencing

The sentence of the court below (two years of imprisonment) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) There is no "Habituality" under Article 2 (1) of the Punishment of Violences, etc. Act for the defendant.

A) As to the assertion, habitual crimes refer to the tendency of a criminal offender, and the nature of the act is not the nature that forms the essence of the act, but the nature that forms the character of the offender. As such, the existence of habituality under Article 2(1) of the Punishment of Violences, etc. Act shall be determined by taking into account various circumstances such as the defendant's age, character, occupation, environment, criminal record, motive, means, method and place of the crime, interval with the previous crime, and similarity with the contents of the crime (see Supreme Court Decision 2004Do6176, May 11, 2006, etc.).

B) In light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, i.e., (i) the Defendant had served 14 times or more as a violent crime; and (ii) the Defendant was sentenced to imprisonment for a year on January 24, 2014 due to a violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.), and completed the execution of the sentence at a governmental prison on January 11, 2015; and (iii) the Defendant committed intimidation at the time when one month has not passed since the execution of the sentence was completed, it is sufficiently recognized that the Defendant had a “Habituality” under Article 2(1) of the Punishment of Violences, etc. Act.

C) Therefore, the Defendant’s above assertion is without merit.

2) The following circumstances acknowledged by the evidence duly adopted and examined by the court below as follows:

In other words, in light of the fact that the wooden sculptures that the defendant was on the floor was the wooden sculptures with a height of 40 cm and the width of 30 cm and that when using the above sculptures, the victim could feel a danger to the life or body of the victim, etc., the wooden sculptures constitutes "hazardous objects" under Article 3 (1) of the Punishment of Violences, etc. Act.

B) Therefore, the Defendant’s above assertion is without merit.

3) The argument that the crime of intimidation is not established because it is difficult to see the victim’s fear by the Defendant’s act was committed. The following circumstances acknowledged by the evidence duly adopted and investigated by the court below, namely, the victim: (i) the police; and (ii) the victim did not appear to have frighten the Defendant’s sound; and (iii) the Defendant did not appear to have frighten the Defendant’s seat and books; (iv) the Defendant had taken several times of his hand to fright the Defendant’s seat and books; and (v) the Defendant’s act was committed against the Defendant, such as the Defendant’s act of causing a danger to the Defendant, and the Defendant’s act of causing danger to the Defendant, such as the Defendant’s act of causing danger to the Defendant’s cryption.

B) Therefore, the Defendant’s above assertion is without merit.

B. Determination on the assertion of unfair sentencing

1) It is recognized that the Defendant made a confession to substitute and reflect the instant crime, and that it appears to have committed the instant crime contingently.

2) However, in full view of various circumstances, including the fact that the Defendant again committed the instant crime at the time when one month has not passed since the completion of the execution of the sentence, the Defendant committed the instant crime by using dangerous articles, such as the fact that he committed the instant crime by using a wooden scoo, setting the floor, etc., which did not agree with the victim, and the damage was not recovered, and other circumstances that are conditions for sentencing specified in the pleadings of the instant case, such as the Defendant’s age, circumstances leading to the commission of the crime, and circumstances after the commission of the crime, even if considering the above circumstances favorable to the Defendant, the lower court’s punishment is too unreasonable and it is not deemed unreasonable. 3)

3. Conclusion

Therefore, the defendant'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.