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Main Issues
Whether an answer to the niven of the crime can be seen as a statement of fact under Article 323(2) of the Criminal Procedure Act.
Summary of Judgment
In the court below's decision, where the defendant gives the answer to "the defendant, under the influence of alcohol," as to the physical drinking of the reason for the crime, this cannot be viewed as a statement of the fact that is the reason why the establishment of the crime is excluded, or that is the reason why the punishment is aggravated or mitigated.
[Reference Provisions]
Article 323 (2) of the Criminal Procedure Act
Escopics
Defendant
upper and high-ranking persons
Defendant
Defense Counsel
Attorney Lee Jae-han
Judgment of the lower court
Seoul High Court Decision 85No2482 delivered on November 28, 1985
Text
The appeal is dismissed.
The thirty days, from among those pending trial after the appeal, shall be included in the principal sentence.
Reasons
The defendant and public defender's grounds of appeal are also examined.
Comprehensively taking account of the evidence cited by the court of first instance that the court below maintained, it is sufficient to acknowledge the facts of the crime as stated in its holding, and the defendant stated by the investigative agency that he had been drinking much at the time of the crime of this case, but was not at the time of the crime of this case (Article 47 of the Investigation Records). Meanwhile, the court of first instance asked that "humb" in the court of first instance "humbn" is "humbn" (Article 49 of the Criminal Procedure Records). It cannot be deemed that this cannot be deemed as a statement of a fact that is reasonable for the legal establishment of a crime of this case, or for the increase or decrease of punishment, or for the reason of reduction or exemption of punishment. Therefore, it cannot be deemed that there was a defect in the judgment of the court below, or that there was a lack of examination or a lack of judgment, or that the determination of punishment was unfair in the case of which the defendant was sentenced for three years of imprisonment with prison labor for the defendant, it is clear
Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.
Justices Jeon Soo-soo (Presiding Justice)