2011Gohap408 Violation of the Control of Firearms, Swords, Explosives, etc. Act

2012 high-ranking 2 (Joint Medical Treatment and Custody)

Applicant for Medical Treatment and Custody

○○ (71 - 1)

Yeongdeungpo-gu Seoul Metropolitan Government

Seongbuk-gu Seoul basic domicile

Park Jae-young (prosecutions) and soldiers (public trial)

Attorney Yoon Don-do, Lee Won-su (Korean)

April 4, 2012

A defendant shall be punished by imprisonment for two years.

One gas-style rifle (O) (No. 1) seized shall be confiscated.

A candidate for medical treatment and custody shall be punished by medical treatment and custody.

Criminal facts and facts constituting grounds for medical treatment and custody

Defendant and Applicant for Medical Treatment and Custody (hereinafter referred to as Defendant 2) committed the following crimes under the lack of ability or intent to discern things due to mental and physical disorder as a person suffering from a bipolartic disorder:

1. Attempted murder;

피고인은 2011. 1. 1. 07 : 45경 서울 영등포구 ○○ 소재 ' ○○ ' 편의점에서 물건을 고르고 있는 피해자 유○○에게 " 비켜, ○○ 놈아 " 라고 욕설을 하며 시비를 걸자 피해자가 " 지금 뭐라고 그랬어요 " 라고 대꾸하며 카운터에 다리를 올려 신발 끈을 묶으며 길을 막자 이에 위협을 느끼고 허리춤에 차고 있던 ○○권총 ( 길이 20. 5cm, 무게 752g , 재질 스테인리스 ) 을 꺼내어 피해자의 머리를 향하여 격발하였으나 격발되지 않자 " 그 래, 쏴 " 라고 하며 쳐다보는 피해자의 눈빛에서 살의를 느껴 피해자로부터 맞아 죽을 것 같은 느낌을 받아 들고 있던 권총의 총구를 잡고 손잡이 부분으로 피해자의 후두 부위를 2회 내리쳤으나 이를 지켜보고 있던 위 편의점 종업원이 119에 연락하여 병원에 후송토록 조치하는 바람에 피해자에게 약 6주간의 치료를 요하는 두개골 골절상 등을 가하는 데 그치고 살해의 뜻을 이루지 못하여 미수에 그쳤다 .

2. Violation of the Control of Firearms, Swords, Explosives, etc. Act;

No person shall manufacture, sell or possess a maternity gun that seems similar to a gun.

Nevertheless, on December 27, 2010: the Defendant purchased the ○○○○○○○○○ located in Guro-gu Seoul Metropolitan Government’s ○○○○○○○○○○○○○○○○○○○○○○○○, and then found it at the above place around the 31st day of the same month, demanded the above ○○○○○ to rapidly change the speed of the coal, and demanded the above ○○○○ to remove the said studr part of the said studr and strengthen the speed of the coal by strengthening the speed of the coal by removing the studr in the said studr part of the said studr, and carried the studer’s gun that is likely to cause any danger and injury to human life and body, exceeding 02 km.

As above, the Defendant is a person who committed a crime punishable by imprisonment without prison labor or heavier punishment while having weak ability or intent to discern things, and is in need of medical treatment and custody in a medical treatment and custody facility and is in danger of recidivism.

Summary of Evidence

[Judgment No. 1]

1. The statement that the defendant's legal statement was made on the date and time as indicated in the judgment, and the fact that the part concerning the knife of the gun as indicated in the judgment was taken twice as the part concerning the knife of the victim;

1. The first and second police interrogation protocol against the accused;

1. Each investigation report (Attachment of photographs of criminal tools and photographs, and attachment of CDs);

1. A medical certificate;

1. Photographss of the scene of crime and photographs of the upper part of the victim;

1. Existence of one (O)-type gas ○-type rifle (No. 1) seized;

[Judgment No. 2]

1. Defendant's legal statement;

1. Each investigation report (the attachment of photographs to a criminal tool, the attachment of receipts, the attachment of photographs to a sprink, and reporting on telephone conversations to personnel of the gun association);

1. Return on the result of inspection as to whether guns are maternity guns;

1. Existence of one (O)-type gas ○-type rifle (No. 1) seized;

[The need for treatment in its holding and the risk of recidivism]

According to the following circumstances, namely, ① the risk of committing the instant crime, the degree of damage to the victim, ② the statement of intent to prepare an oriental medical doctor at ○○○○○○○○○○○ (related to the investigation of an interview with a medical specialist), according to the investigation report (related to the investigation of an interview with a medical specialist), the Defendant is judged to suffer from a dynamic disorder, such as the emotional dynamic disorder, and the physical examination of the medical treatment and custody center: ③ according to the mental examination report of the medical treatment and custody center, it is deemed that the medical treatment of the Defendant is necessary for an irregular period of at least one year in the future; ④ in light of his family relationship or family form, it is deemed that the Defendant may not be continuously treated if the medical treatment is not provided at the medical treatment and custody center; ⑤ In full view of other circumstances, such as the Defendant’s age, character and behavior, and the conditions before and after the crime, the Defendant needs to receive medical treatment at the medical treatment and custody center and the risk of re-offending

Application of Statutes

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

Articles 254 and 250(1) of the Criminal Act (the attempted murder, the option of limited imprisonment) and Articles 73 subparag. 1 and 11(1) of the Control of Firearms, Swords, Explosives, etc. Act (the possession of a mother gun and the choice of imprisonment)

1. Statutory mitigation;

Articles 10(2) and (1) and 55(1)3 of the Criminal Act.

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes to the extent that Punishment is aggregated with the punishment prescribed by the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes of homicide)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 55(2) of the Criminal Act (see, e.g., Articles 53 and 55(1)3 of the Criminal Act)

Article 48 (1) 1 of the Criminal Act

1. Medical treatment and custody;

Judgment on the issues of Article 2 (1) 1 of the Medical Treatment and Custody Act

1. Defendant and his defense counsel’s assertion

The defendant asserts that he did not intend to kill the victim at the time of committing the instant crime.

2. The judgment of this Court

A. In the crime of murder, the intent of murder does not necessarily require the intention of murder or planned murder, but it is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to one’s own act, and its recognition or prediction is not only conclusive but also a so-called willful negligence. In a case where the defendant asserts that there was no criminal intent of murder at the time of committing the crime, and that there was only the criminal intent of murder or assault, whether the defendant was the criminal intent of murder at the time of committing the crime should be determined by taking into account the objective circumstances before and after committing the crime, such as the background leading up to the crime, motive, existence of a deadly weapon prepared for the crime, type, method of attack, degree of repetition and repetition of attack, and possibility of causing the result of death (Supreme Court Decision 2006Do734 Decided April 14, 206).

B. Comprehensively taking account of the following circumstances acknowledged by the evidence in the holding, at least as follows, it is recognized that at the time when the Defendant ○○○○ made a knife of the pistol as indicated in the judgment, the Defendant had dolusent intent to murder with the victim at the time of his her knifeing. 1) The decision that the gun used as a tool to commit the instant crime had a knife part of the knife metal material with the weight of 752g, and there is a knife in the knife part. 2) The head of a person was one of the parts essential for the maintenance of his life, and there is a high possibility of death when knife with the head. 3) The Defendant stated that knife knife knife knife knife knife knife knife knife knife knif.

5) The Defendant stated to the effect that he thought that he would have died of the victim while blocking the instant crime and taking advantage of convenience points in the process of this court and police investigation. Moreover, the Defendant died of another person at the ○○ Hospital, etc. immediately after the instant crime was committed.

I said that it was said.

The reason for sentencing [the scope of punishment to be sentenced] shall be 1 year and 3 months to 8 years.

【Aggravated Bodily Injury】

[Special Mitigation] The intention of dolusor murder, mental and physical disability (no one shall be responsible for himself/herself)

[Scope of Recommendation] Murder Group, Type 2 (General Murder), Reduction Field, and Imprisonment with prison labor for not less than two years but not more than six years and less than six months;

[Scope of the revised recommended punishment] for not less than two years (the sentencing guidelines are not set) (the crime of attempted murder of this case) / [the sentence] of two years or more shall be sentenced to a sentence of imprisonment with prison labor for the defendant, in light of the following: (a) the defendant strongly left the victim's head with the pistol in the judgment and suffered injury requiring six weeks medical treatment; (b) the crime is extremely poor and highly dangerous; (c) the victim is not completely cured despite surgery on two occasions; and (d) the victim does not completely recover from damage; and (e) the victim is seeking the punishment of the defendant, it is inevitable to sentence the defendant to a sentence of imprisonment with prison labor for the defendant: Provided, That the defendant is deemed to have committed the crime of this case in a state of mental and physical disability; (b) the defendant is deemed to have committed the crime of this case in a state of mental and physical disability; (c) the defendant has no criminal conviction or criminal conviction for the same kind of crime or suspended execution; and (d) the jury's opinion of sentencing, etc., within the maximum two years to be mitigated.

jury verdict and sentencing opinion

1. A verdict of guilt or innocence;

(a) Crimes of homicide: Five jurors' opinions on conviction, the opinion of not guilty of two jurors [the opinion of conviction in violation of the Punishment of Violences, etc. Act (a group, injury by deadly weapons, etc.)];

(b) A violation of the Control of Firearms, Swords, Explosives, etc. Act: A person guilty of seven jurors;

2. A verdict on whether to recognize medical treatment and custody.

Opinions on the recognition of seven jurors of medical treatment and custody

3. Opinions on sentencing

Five jurors: Imprisonment with prison labor for two years;

One juror: Imprisonment with prison labor for one year and three months;

One juror: Imprisonment with prison labor for one year

Judges Kim Yong-hoon

Judges Jeon Sung-sung

Judges Ha Jae-sung-nam