Defendant 1 (Defendant of the Supreme Court’s judgment) and one other

Prosecutor

Kim (prosecution) and Park Jong-soo (Trial)

Attorneys Park Sang-hoon et al.

Gwangju District Court Decision 2011 Godan519 Decided February 15, 2012

1. The part on Defendant 1 among the judgment below is reversed.

Defendant 1 shall be punished by imprisonment for six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 1 shall be subject to probation and shall order a community service for 40 hours.

2. Prosecutor’s appeal against Defendant 2 (Co-defendant of the lower court’s judgment) is dismissed.

1. Summary of grounds for appeal;

A. As to Defendant 1

Although the facts charged against Defendant 1 and the notification disposition against Defendant 1 are not identical, the judgment of the court below that acquitted the above facts on the premise that the basic facts are identical, is erroneous in the misunderstanding of facts and in the misunderstanding of legal principles, which affected the conclusion of the judgment.

B. As to Defendant 2

Although evidence (such as a medical certificate of injury to a victim) corresponding to the facts charged against Defendant 2 exists, the judgment of the court below dismissing the public prosecution against Defendant 2 on the ground that Defendant 2 could not be punished as the crime of injury and only the crime of assault may be established, and that the victim expressed his intent not to punish the defendant 2, which affected the conclusion of the judgment by misunderstanding the facts.

2. Determination

A. As to the grounds of appeal against Defendant 1

1) Summary of the facts charged in the instant case

Defendant 1, around 18:00 on September 26, 2010, at the coffee parking lot in Nam-gu, Gwangju (hereinafter omitted), attempted to see that Defendant 2 was "to kill people" and that he was "to kill people" beyond the floor, and tried to see the attitude that Defendant 1 used the transition (10cm in length, 2cm in width and 2cm in width) dangerous goods in the above ○○○○○○ used room operated by the above Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), while driving away from the victim, and expressed the attitude that Defendant 1 would inflict any harm on the body of the victim.

2) Summary of the relevant offenses

According to the evidence duly admitted and examined by the court below, Defendant 1 was notified by the chief of the competent police station of the payment of a penalty of KRW 50,00 on the same day on the ground that “In the second-ro street street located in the Southern-gu Seoul Metropolitan City, Gwangju, it caused an offense as defined in Article 1 subparag. 25 of the Punishment of Minor Offenses Act” and paid the penalty on the following day.

3) The judgment of the court below

The court below determined that the facts charged in this case and the facts charged in violation of the Punishment of Minor Offenses Act are identical in the basic point of view, and applied Article 7 (3) of the Punishment of Minor Offenses Act which recognizes the validity corresponding to the final judgment on payment of penalty by notification as to the facts charged in this case, since Defendant 1 was reported to the police in the course of driving away away from the victim while the above reported facts were subject to the above penalty disposition. Thus, the court below sentenced Defendant 1 to acquittal pursuant to Article 326 (1) of the Criminal Procedure Act by deeming that the facts charged in this case constitute the time when final judgment

4) Determination of the immediate deliberation

The identity of facts charged or facts constituting an offense ought to be determined based on the Defendant’s act and the relevant social factual relationship in mind with the legal function of the identity of facts (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2004Do6390, Jan. 13, 2005; Supreme Court Decision 2009Do4785, Oct. 14, 2010).

On the other hand, the penalty system under the Punishment of Minor Offenses Act is different from the trial procedure of the court in that it provides special cases for punishment in order to simple, prompt and appropriate treatment of the case without prosecution against the person who pays the penalty by providing an opportunity to pay a certain amount of penalty pursuant to a notification disposition by the chief of a police station prior to the criminal procedure. The scope recognized as effective due to the payment of penalty is limited to the relevant offense itself and the offense recognized as identical to the offense committed on the grounds of notification of penalty. Therefore, even if the act was committed during the same period and at the same place as the offense, the effect of res judicata corresponding to the final judgment does not extend to the criminal act committed beyond the identity of the offense (see Supreme Court Decision 2001Do849, Nov. 22, 2002).

According to the evidence duly adopted and examined by the court below, the charge of the crime of disturbance of drinking alcohol, etc. and the violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) committed by Defendant 1, who was subject to a disposition of notification of the above penalty, overlaps in the process of driving away the victim with Defendant 1’s knife and the date and time of the crime.

However, the offense of Article 1 subparag. 25 of the Punishment of Minor Offenses Act, which applies to Defendant 1, is “a person who is gathering or frequent by many people, such as a public hall, theater, restaurant, etc. or who is on board a train, motor vehicle, ship, etc., by uttering or doing rough words or actions, and without any justifiable reason.” However, the carrying of a lethal weapon, which is the facts charged of this case, is a dangerous object, driving away from the victim, and makes a noise so that it is very different from the contents, means, and attitudes of the offense. Furthermore, compared to the protection of the law of peace and order of society as well as the protection of the freedom of decision-making by a specific person, it is completely different from the legal interest of damage arising from each act. In light of the above legal principles, it is reasonable to view that the crime of this case, which is a serious violation of the Criminal Act or the punishment of the act of violence, etc., can not be deemed as having been punished by a fine not exceeding 100,000 won, or a minor punishment, etc.

Nevertheless, the judgment of the court below which acquitted the facts charged in this case on the grounds that the facts charged in this case are identical to the facts charged in this case pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act, on the ground that the facts charged in this case constitute the time of final judgment, is erroneous in the misapprehension of legal principles as to the identity of the offense and the validity of res judicata due to the payment of the penalty

B. As to the grounds of appeal against Defendant 2

The following circumstances can be acknowledged according to the evidence duly adopted and examined by the court below.

① At around 17:50 on September 26, 2010, the victim asserts that he/she sustained injury. However, at around 18:00 on the same day, the victim went to the forest zone along with the police officer who was dispatched after receiving a report, and was asked Nonindicted 2 and Nonindicted 3 to check his/her bucks. However, at the court below, Nonindicted 2 stated that “the time was only 30-40 minutes, the time was when the time was less than 30-40 minutes, and that the color of the hole was a test color (76 pages) and Nonindicted 3 also stated that “A hole was made on the part of the buckbucks of Defendant 1’s bucks” (Article 287, 288).

② At the lower court, Nonindicted 4 and Nonindicted 5, who is Defendant 2’s leakage, stated that “When the victim was found on September 21, 2010, the day before the prosecution was held, they laid down the left side bridge, and show that they were in a hole on the inner part of the buckbucks inside the bucks (Records 171-172 pages, 250-251 pages).”

③ At the time of the instant case, the victim and Nonindicted 1, who was his wife, were in conflict with Defendant 2 due to the dissolution of the partnership relationship with Defendant 2. Moreover, the first assertion that the victim suffered an injury from Defendant 2 was under investigation due to the fact that the victim threatened Defendant 2 with a dangerous object. Accordingly, the victim and Nonindicted 1’s statement cannot be ruled out to be false.

④ The prosecutor asserts that the “influence” column of the written diagnosis of injury against the victim includes “influence, skin, skin, and skin transfusion” and “influence of injury” column “influence of injury” and “influence of injury” column “influence of injury” and “influence of September 26, 2010” as “influence of injury” means that the time of the assault is close to the time of the diagnosis. However, in the written diagnosis of injury, “influence of injury” and “influence of injury” mean that the time of the assault and the time of the diagnosis are close solely because the degree of side is not stated in the written diagnosis of injury does not necessarily have to be close to the time of the diagnosis, and if a part of the body that is irrelevant to the instant case exists, a part of the body that is irrelevant to the instant case may be attached to the time of the assault.

Comprehensively taking account of the aforementioned circumstances, it is insufficient to view that each statement made by the victim, Nonindicted 1’s investigative agency and Nonindicted 1 in the original trial alone is sufficient to prove that Defendant 2 had committed an injury to the victim to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge this. Accordingly, the facts charged against Defendant 2 cannot be established, and only the crime of assault can be established. The crime of assault is a crime falling under Article 260(1) of the Criminal Act, which cannot be prosecuted against the victim’s express intent under Article 260(3) of the Criminal Act, and the fact that the victim expressed his intent not to punish Defendant 2 in the original trial (24-245 pages of the trial record). Accordingly, the lower court’s judgment dismissing the public prosecution against Defendant 2 is justifiable. Accordingly, the prosecutor’s aforementioned assertion is without merit.

3. Conclusion

Therefore, since the prosecutor's appeal against Defendant 2 is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. Since the prosecutor's appeal against Defendant 1 is with merit, the part of the judgment of the court below against Defendant 1 is reversed, and it is again decided as follows.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are as follows: (a) the facts constituting the crime of the judgment below are as follows: (b) the 4 to 7 are as follows; (c) the 2-A-1 of the judgment of the court of original instance is added to the 2-A-1 of the judgment; and (d) the 2-A-1 of the judgment of the court of original instance is as follows; and (e) except for adding “each statement of Non-Indicted 2 and 3 of the court of original judgment to the 2-A-1 of the judgment of original instance”

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 257(1) of the Criminal Act (the point of injury, the choice of imprisonment), Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, Article 283(1) of the Criminal Act (the point of intimidation by carrying a deadly weapon)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Limits to Aggregate of Long-term Punishments in the above Two Crimes)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., Supreme Court Decisions 201Do1448, Apr. 2, 201; 201Do114, Apr. 2

1. Suspension of execution;

Article 62(1) of the Criminal Act (The grounds for discretionary mitigation shall be repeatedly considered, but the period shall be two years in order to prevent recidivism)

1. Probation and community service order;

Article 62-2 of the Criminal Act

The circumstances favorable to the defendant include the fact that the defendant led to the confession of the crime and reflects the mistake, that the defendant has no specific criminal record other than the one-time suspension of execution due to the crime committed against the crime committed against the defendant, and that there is no substantial damage to the victim due to intimidation by carrying a deadly weapon during the crime in this case.

On the other hand, the crime of this case is a situation unfavorable to the defendant, where the defendant injured the victim and threatened him with a deadly weapon, and the nature of the crime is not good, and the victim wants to punish the defendant.

The punishment as ordered shall be determined by comprehensively taking into account the following circumstances: Defendant’s age, character and conduct, motive and background of the instant crime, circumstances after the instant crime, etc., and various sentencing conditions as shown in the records and arguments.

Judges Park Gi-ro (Presiding Judge) Kim Jong-ju