[1] The case affirming the judgment below which held that if the victim prices the victim under the name of "breabb", the crime of assault is established, and it does not constitute a justifiable act that does not violate social norms in light of various circumstances, such as motive, method, frequency, etc. of the price act

[2] Whether an expression of intent not to punish a person subject to punishment in a crime of assault, etc., such as the crime of assault may be made alone by a victim with mental capacity (affirmative), and whether an heir after the death of the victim may substitute such expression of intent (negative)

[3] The case affirming the judgment below which acquitted the victim of the crime of assault death on the ground that the causal relationship between assault and death is acknowledged, but it was impossible to anticipate the victim's death at the time of assault

[1] Articles 20, 260(1) and (3) of the Criminal Act / [2] Article 260(1) and (3) of the Criminal Act / [3] Articles 15(2), 17, and 262 of the Criminal Act

[1] Supreme Court Decision 98Do2389 delivered on April 25, 200 (Gong2000Sang, 1345) Supreme Court Decision 2003Do4151 Delivered on April 27, 2006 (Gong2006Sang, 975) Supreme Court Decision 2007Do6243 Delivered on December 24, 2009 (Gong2010Sang, 287) / [2] Supreme Court Decision 2007Do4962 Delivered on October 11, 2007 (Gong207Ha, 1790), Supreme Court en banc Decision 2009Do6058 Delivered on November 19, 200 (Gong2009Ha, 209Ha, 2129) / [3] Supreme Court Decision 205Do29495 delivered on May 29, 2005

Defendant

Defendant and Military Prosecutor

Hyundai Law Firm, Attorney Kim Tae-young

High Court for Armed Forces Decision 2009No256 Decided February 2, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2 by defense counsel

"Acts which do not violate social norms" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and which acts are legitimate acts that do not violate social norms and thus, the illegality of such acts should be avoided, based on specific circumstances, and should be determined individually by rationally and reasonably under consideration. In order to recognize such legitimate acts, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementaryness that there is no other means or method than the act (see Supreme Court Decisions 98Do2389, Apr. 25, 200; 207Do6243, Dec. 24, 2009, etc.).

According to the reasoning of the judgment of the court below, the court below determined that the crime of assault was established if the defendant prices the victim under the name of "bakb" as stated in its reasoning. In light of all the circumstances, such as the motive, method, frequency, etc. of the price act cited by the court below, the above judgment of the court below is justified in accordance with the legal principles as seen earlier, and there is no violation of law

2. As to the third ground for appeal by defense counsel

The crime of assault is a crime of non-violation of will which cannot be prosecuted against the clearly expressed will of the victim, and the expression of intent not to punish him/her can be independently made by the victim with mental capacity (see Supreme Court en banc Decision 2009Do6058, Nov. 19, 2009). After the death of the victim, his/her heir cannot make an expression of intent not to punish him/her on behalf of the victim.

Therefore, even if the heir of the victim expressed his/her intention not to punish the defendant before the judgment of the court of first instance was rendered as alleged by defense counsel, the judgment of the court below guilty of the crime of assault against the defendant is justified in accordance with the above legal principles, and there is no violation of law by misapprehending the legal principles as to the expression of intention not to punish the defendant in the crime of

3. Regarding the grounds of appeal by the military prosecutor

In addition to the causal relationship between assault and death as a result of an aggravated crime, the likelihood of the result of death should be by negligence, i.e., the predictability of such a crime, and the existence of such predictability should be strictly examined by examining specific situations such as the degree of assault and response of the victim (see Supreme Court Decision 90Do1596, Sept. 25, 1990, etc.).

According to the reasoning of the judgment below, although the causal relationship between the defendant's assault and the victim's death is acknowledged, the court below held that the defendant was not guilty on the ground that the defendant could not have predicted that the victim would die at the time of the assault, considering all the circumstances such as the father and degree of the assault, relationship between the defendant and the victim, and the victim's health condition, etc. In light of the above legal principles, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the establishment or predictability of the crime of assault as alleged in the grounds of appeal.

On the other hand, among the grounds of appeal, the part asserted that the defendant prices the victim's chest part is ultimately an error in the selection of evidence and fact-finding belonging to the exclusive jurisdiction of the court below, which is a fact-finding court, and thus does not constitute a legitimate ground of

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)