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(영문) 서울고등법원 2020.05.07 2019노2481
살인미수등
Text

The judgment below

The part of the forfeiture shall be reversed.

One of the chains seized (No. 1) shall be forfeited from the accused.

Reasons

With respect to the part of the defendant's case which was the subject of the judgment, the court below sentenced the judgment of conviction and the judgment of dismissal of the prosecutor's request for the attachment of an electronic tracking device for 10 years for the part of the case for which the probation order is requested.

On the other hand, since only the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant") have lodged an appeal, there is no interest in appeal regarding the part of the probation order claim

Therefore, notwithstanding the provisions of Articles 21-8 and 9(8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the part of the request for probation order is excluded from the scope of the judgment of this court.

Summary of Grounds for Appeal

A. The part of the defendant's case 1) misunderstanding of facts or misunderstanding of legal principles 1) although the defendant used excessive personal injury to assault the victim, the victim did not have been injured, and the defendant did not have an intention to injure the victim only when he attempted to do so.

B) The Defendant’s attempted murder part is merely the victim’s head at several times in order to put the victim brupt, and there was no intention to commit murder. C) The part of the embezzlement part consented in advance to the disposal of the electronic equipment recorded in the crime of embezzlement, so the crime of embezzlement is not established.

2) The sentence imposed by the lower court on the Defendant of unreasonable sentencing (one hundred years of imprisonment) is too unreasonable. (B) It is unreasonable for the lower court to order the Defendant to attach an electronic tracking device on the premise that the Defendant is found guilty of attempted murder unless the Defendant had no intention to commit murder.

2 even if the Defendant is recognized as having attempted murder, in light of the Defendant’s age, occupation, character and conduct, family relationship, details and etc., the Defendant cannot be said to pose a risk of repeating murder.

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