(영문) 광주지방법원 2014.01.10 2013노2394 | 리걸엔진

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(영문) 광주지방법원 2014.01.10 2013노2394

폭력행위등처벌에관한법률위반(상습상해)등

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles [the part concerning habitual injury] Defendant, around March 22, 2013, had the same drinking as the victim C (hereinafter “victim”), but did not inflict injury upon the victim in consideration of the fact.

At the time, the victim was under the influence of alcohol and was only suffering from the upper side of the face because the victim was unable to properly hold the body.

In addition, the police statement of the victim, which the defendant did not consent, is the same as the victim stated, and it is not proved by the victim's statement on the trial date. Since the defendant or his defense counsel could not examine the victim, it cannot be used as evidence.

Nevertheless, the judgment of the court below which found the victim guilty of this part of the facts charged after adopting the police protocol as evidence because the victim's whereabouts is unknown, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

B. The lower court’s imprisonment (two years of imprisonment) is too unreasonable when taking into account the various circumstances on the Defendant’s grounds of unfair sentencing.

2. Determination

A. (1) As to the assertion of misunderstanding of facts and misapprehension of legal principles, the person who needs to make a statement on the trial date is unable to make a statement in the official ruling due to death, disease, foreign residence, unknown whereabouts, and other similar causes under Article 314 of the Criminal Procedure Act or the written statement, documents, etc. under Article 313 of the same Act pursuant to Article 314 of the same Act shall be the case where the person who needs to make a statement on the trial date is unable to make a statement due to the admissibility of evidence of the written statement by the police of the victim, and the preparation

In addition, when the court is unable to make a statement because the witness is missing or due to other similar reasons.

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