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(영문) 서울고등법원 2018.02.07 2017노3326
살인미수
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The Defendant had no intention to kill the victim.

Nevertheless, the court below held that the defendant attempted to kill the victim with the intention to murder.

The judgment of the court below is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

B. The lower court erred by misapprehending the legal doctrine on mental and physical weakness, which led to the Defendant’s act under the influence of alcohol at the time of the instant crime, without recognizing the Defendant’s mental and physical weakness.

(c)

The punishment sentenced by the court below to the defendant (seven years of imprisonment) is too unreasonable.

2. Determination

A. As to the Defendant’s assertion of mistake of facts alleged in the lower court’s judgment as to the same purport as that alleged in the above facts, the lower court rejected the Defendant’s assertion on the following grounds: (a) the Defendant’s detailed circumstances at the 3rd 5th 5th 4th 2nd

We affirm the judgment of the court below as just in light of the circumstances acknowledged by the court below and closely compared with the evidence examined.

Therefore, the judgment of the court below contains an error of mistake as alleged by the defendant.

Therefore, this part of the defendant's assertion is without merit.

B. As to the Defendant’s assertion of misapprehension of the legal doctrine as to the assertion of the above mental and physical weakness at the lower court, the lower court, while recognizing the fact that the Defendant was in a drunken state at the time of the instant crime, in light of the background leading up to the instant crime, the means and method of the crime, and the Defendant’s attitude before and after the instant crime, deemed that the Defendant had the weak ability to discern things or make decisions under the influence of alcohol at the time of the instant crime.

The defendant is deemed not to be recognized.

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