(영문) 서울중앙지방법원 2019.6.28. 선고 2019고합158 판결

피고인은 2018. 1. 8. 23:34경 서울 서초구 B건물 지하 1층에 있는 'C'이라는 상호의 단란주점에서 무대에서 노래를 부르고 있던 피해자 D(60세)의 근처를 지나가다가 피해자의 엉덩이 부분을 건드려 피해자와 시비가 붙었다. 피고인은 그 과정에서 피해자가 자신의 다리를 한 대 찼다는 이유로 격분하여 피해자의 멱살을 잡고 가슴과 얼굴을 주먹으로 때리고 허벅지를 발로 차 바닥에 넘어뜨리는 등 피해자를 폭행하였다.

The Defendant assaulted the victim and caused the victim to suffer serious injury that may cause danger to his/her life, such as flaging flaging transfusion and not knowing consciousness, which require at least six weeks of medical treatment.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Statement made by witnesses E in the second protocol of the trial;

1. Each police suspect interrogation protocol regarding F;

1. Each police statement to G, H, I, and J;

1. Investigation report (related to field inquiry), investigation report (related investigation report related to K of the victim), investigation report ( analysis of CCTV images around the place where the victim occurred), investigation report (information on the current health status of the victim), investigation report (Interview with the head of the injured party), investigation report (Interview with the head of the injured party), and investigation report (verification of the current status

1. A medical certificate, on-site map, on-site photograph, each photo, hospitalized photograph of a victim, and a medical opinion;

Application of Statutes

1. Article applicable to criminal facts;

Articles 262, 260(1), and 258(1) of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Act (General Considerations in Benefits of the Reasons for Determination of Punishment)

1. Social service order;

Article 62-2 of the Criminal Act

Judgment on Defendant and Defense Counsel’s argument

1. Summary of the assertion

A. The Defendant, first of all, walked the victim’s bridge two times from the victim, walked the victim’s bridge once, and sustained the victim’s bodily injury while going beyond the victim, and did not look at the victim’s chest and face as stated in the facts charged in the instant case.

B. In the facts charged that the victim suffered simple bodily injury due to the Defendant’s assault, the indictment was modified to the charge that the victim suffered a serious injury due to the Defendant’s assault. The serious injury suffered by the victim did not have causation with the Defendant’s act, or there was no possibility that the Defendant could have predicted the said serious injury.

group 4

A. As to the assault inflicted on the victim by the defendant

1) A person who observed the instant assault by the Defendant at the time of the instant case, other than the Defendant and the victim, is one of the Dozster G, the main Dozer G, the Dozer E, the Defendant’s work I and J.

2) At the investigation stage, the victim returned from the stage at the time of the instant case to the place of the Defendant at one time, and the victim again returned to the Defendant at one time again, and the Defendant stated that he was used by the victim at one time when walking the victim’s bridge (Article 47, 262 of the Investigation Records). The Defendant stated to the same effect as the Defendant’s happiness I stated to the same effect (Article 324 of the Investigation Records).

3) 그에 반하여 주점 도우미 증인 E은 수사단계에서부터 이 법정에 이르기까지 수차례에 걸쳐 일관되게, 자신은 이 사건 당시 피해자와 함께 무대에 있었는데, 피고인이 무대에 올라와 피해자의 엉덩이 부분을 건드린 후 다시 자리에 돌아가자 피해자가 피고인을 따라가 피고인의 자리 근처에서 피고인의 다리를 1회 걷어찼고, 이에 피고인이 피해자의 멱살을 잡고 가슴과 얼굴을 때렸다고 진술하였고(수사기록 제70, 232, 314, 535쪽, 녹취록 제2쪽), 피해자도 수사단계에서 같은 취지로 진술하였다(수사기록 제594쪽).

4) The testimony of the witness E, consistent with the facts charged in the instant case, was ① at the time of the instant case, G was playing musical instruments at the back of the stage, while the witness E was singing together with the victim at the time of the instant case, and singing the victim at the stage. ② The witness E did not drink at the time, and the defendant, I was under the influence of alcohol; ③ the defendant was investigated as witness at the investigation stage, and the victim was not mentioned in the situation at the time of singing the defendant’s shock (the 33th page of the investigation record). ④ The victim’s singing the victim at the time of the instant case without any special reason, or the defendant returned back to the place without any other provision that sing the victim’s her singke at the time of the instant stage, and it is difficult to recognize the credibility of the defendant’s testimony after the victim’s testimony and the victim’s statement at the time of the instant case’s 16th day of the death of the defendant.

B. As to the causation and predictability

1) The crime of bodily injury by assault is an aggravated crime, and not a causal relationship exists between the result of assault and bodily injury, i.e., the predictability of the result of the bodily injury. However, the existence of such predictability ought to be strictly determined by strictly examining specific situations, such as the degree of assault and the response of the victim, etc. (see Supreme Court Decision 2003Do2796, Dec. 26, 2003).

2) In full view of the following circumstances acknowledged by the evidence revealed earlier, proximate causal relation between the Defendant’s assault and the victim’s serious injury can be acknowledged, and it is recognized that the Defendant could have predicted the fact that the victim could suffer serious injury due to the above assault at the time of the instant crime. Accordingly, this part of the Defendant’s assertion is rejected.

A) In general, anyone can easily expect that the head of a person’s body may cause serious danger to his/her life when the head is faced with the floor while being used by a person as an important institution directly related to his/her life.

B) The Defendant, due to his assault, did not take any measures to confirm the situation in which the victim was not able to take the floor, and the victim left the floor without taking any measures. On the following day, the victim was transferred to a L University School by the police called up after receiving a report from G around 02:00 a.m.

C) As above, the victim was diagnosed with sick conditions, such as 'explosion closion closion' at L University Hospital after being hospitalized in an emergency operation (dual closion and dlosion removal surgery) and discharged around June 2018 after the lapse of 5 months (the 150th day of the investigation record). After that, the victim was diagnosed with abnormal behavior and slosion around August 6, 2018, the victim was hospitalized in L University Hospital as "the state of continued brain closion closion" and was diagnosed as "the state of continued brain closism", which was repeated from that time until September 17, 2018, which continued to have been diagnosed as "the state of continued brain closism" and "the state of continued closism in which there were no thirical malopical slostical slostical slostical slostical slostical slostical mosis."

D) Prior to the instant case, the victim received treatment under the name of the disease such as 'urology' and 'high blood pressure', but did not receive treatment due to brain disease before the instant case.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for one year to ten years; and

2. Scope of recommendations based on the sentencing criteria: The aggravated area (a serious injury, 6 months to 3 years of imprisonment) of crimes of violence from six months to three years of imprisonment.

3. Determination of sentence: Imprisonment with prison labor and one year and six months, three years of suspended sentence, and 80 hours of community service order;

○ Unfavorable Conditions

The crime of this case was committed by assaulting a victim on the ground that the defendant was dead, resulting in a serious injury with which cerebrovascular and cerebrovascular continued, etc., and its contents are not good in light of the circumstances of the crime and the result of the occurrence, and the fact that the defendant has been punished several times for the same criminal acts is disadvantageous to the defendant.

○ favorable circumstances

It seems that the Defendant agreed with the victim, the Defendant committed the instant crime in a contingent manner with the victim, and the degree of tangible force that the Defendant exercised, appears not to have been much serious, and there is no responsibility for the occurrence of the instant crime and the expansion of damage. It is reasonable to take into account the following: (a) the Defendant’s agreement with the victim; (b) the Defendant committed the instant crime in a contingent manner;

In light of the above circumstances, the sentencing conditions specified in the trial process of this case, including the Defendant’s age, character and conduct, family relationship, family environment, motive and means of crime, and circumstances after crime, the punishment as ordered shall be determined.

Judges

The presiding judge, judges and grandchildren;

Judges Cho Il-hwan

Judges Seo-won

Note tin

1) The part of the facts charged was revised to the extent that the Defendant did not infringe the Defendant’s right of defense.

참조조문

유사 판례

-서울중앙지방법원 2019.06.28 2019고합158

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