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(영문) 부산고등법원 (창원) 2015.09.09 2015노217
특정범죄가중처벌등에관한법률위반(보복상해등)등
Text

The judgment below

Of them, the part against Defendant A shall be reversed.

Defendant

A shall be punished by imprisonment with prison labor for a year and six months.

except that this shall not apply.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) In relation to the mistake of facts and intimidation of retaliation, Defendant A1 merely committed the same crime as Article 2-b of the Criminal Act as indicated in the judgment of the court below on the premise that the Defendant would receive a return of loans or investment funds from the victim, and did not have the purpose of retaliation, but the court below found Defendant guilty of this part of the facts charged. As such, the court below erred by misapprehending the legal principles on the purpose of retaliation or by misapprehending the purpose of retaliation, which affected the conclusion of the judgment. 2) The sentence (one year and

B. The sentence sentenced by the court below to Defendant B (two years of suspended sentence in August) is too unhued and unfair.

2. Determination

A. In full view of the evidence duly adopted and investigated by the lower court regarding Defendant A’s assertion of misunderstanding of facts and misapprehension of legal principles, the fact that Defendant A threatened the victim for the purpose of retaliation may be recognized. Thus, the lower court’s fact-finding and determination (the detailed statement in the 8 to 10th of the original judgment) cannot be deemed to be erroneous.

Therefore, we cannot accept this part of Defendant A’s assertion.

B. Each of the instant crimes recognized by the evidence of Defendant A, the evidence rule, and the legal principles regarding each of the instant crimes, are acknowledged as an unfavorable sentencing factors or objective and neutral sentencing factors, such as: (a) the Defendant assaulted, threatened, and injured the victim for the purpose of retaliation; (b) appears to have suffered considerable mental or physical pain; and (c) the Defendant illegally collected the location information of the victim’s vehicle; and (d) illegally prepared the Defendant to commit the instant crime by destroying the victim’s vehicle to prevent the escape, etc.

However, the defendant recognizes each of the crimes of this case as a substitute and seriously reflects it.

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