2020No1977 Injury, Intrusion into residence

200 Denno 27 (Joint Medical Treatment and Custody)

A

Defendant and Applicant for Medical Treatment and Custody

The prescribed number of cases (prosecutions and requests for medical treatment and custody), the date of gambling (public trial)

Attorney Don-si (Korean)

Seoul Central District Court Decision 2020Gohap761 decided October 10, 2020

2020 Gaz. 7 Gaz. and 2020 Gaz. 3288 Gaz.

April 7, 2021

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for three years.

The appeal filed by a candidate for medical treatment and custody in the judgment below is dismissed.

1. Scope of the judgment of this court;

The court below found the defendant and the applicant for medical treatment and custody (hereinafter referred to as the "defendant") guilty of the facts charged, and rejected the application for compensation by the applicant for compensation of the court below. However, pursuant to Article 32 (4) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the applicant for compensation cannot be dissatisfied with the judgment dismissing the application for compensation order. Therefore, the rejection of the above application for compensation order is immediately determined

2. Summary of grounds for appeal;

The punishment of the court below (four years of imprisonment) is too unreasonable.

3. Determination

A. Part of the defendant's case

The Defendant, on the ground that the Defendant was cruel from the victim D, caused injury to the victim’s face and head, and immediately after being opened a door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door. The victims were all old women, in particular, the victim B was unilaterally cruel from the Defendant who intruded without permission at his own residence. After the instant crime, the victims were transferred to a middle patient room and received treatment, and the victim B was given medical treatment for a prolonged period of time, such as 92-day long-term depression and inner wall door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door.

However, the Defendant has been receiving a mental treatment for a long time, and committed the instant crime under the lack of the ability to discern things or make decisions due to the symptoms of the on-site illness. The Defendant has committed the instant crime under the lack of the ability to discern things or make decisions. The Defendant acknowledges all of his/her mistakes, and without disputing the part of the medical treatment and custody imposed by the lower court, the Defendant is able to properly treat his/her mental problem through the above medical treatment and custody. In the trial, the victim D expressed that he/she does not want to be punished against the Defendant. There is no history of having

In addition, considering the defendant's age, character and conduct, environment, motive and background of the crime, means and result of the crime, various sentencing factors shown in the records and arguments of this case, such as the circumstances after the crime, it is judged that the sentence imposed by the court below against the defendant is too unreasonable. Therefore, the defendant's argument is reasonable.

B. Part of the Medical Treatment and Custody Claim

When a defendant files an appeal against a prosecuted case, it is deemed that the defendant files an appeal against the medical treatment and custody application claim pursuant to Article 14 (2) of the Medical Treatment and Custody Act.

However, there is no statement in the grounds for appeal concerning the application for medical treatment and custody in the petition of appeal and the statement of grounds for appeal submitted by the defendant and his defense counsel, and instead, the defendant's defense counsel explicitly expresses in the statement of grounds for appeal that the part concerning medical treatment and custody is not disputed (Article 1 of the Reasons for Appeal and the Reasons for Appeal).

4. Conclusion

Therefore, since the appeal by the defendant concerning the part of the defendant's case is well-grounded, it shall be reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it shall be decided again after the pleading as follows. Since the appeal concerning the part of the medical treatment and custody claim among the judgment below is without merit, it shall be dismissed in accordance with Article 51 of the Medical Treatment

[Grounds for the judgment re-written on the part of the defendant's case]

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 257 (1) of the Criminal Code (the point of injury, the choice of imprisonment), Article 319 (1) of the Criminal Code (the point of intrusion upon residence, the choice of imprisonment)

1. Statutory mitigation;

Articles 10(2) and (1) and 55(1)3 of the Criminal Act (non-incompetent of mental illness)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with Punishment and Punishment for Bodily Harm to Victims B)

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to five months; and

2. Scope of recommended sentences according to the sentencing criteria;

(a) A crime under subparagraph 1;

[Determination of Type 1] In general injury to a violent crime / [No. 1] General injury

【Special Exemplarys / Mitigations : Mental Health and Medical Treatment

Aggravation: In the case of committing a crime against unspecified victims, serious injury, or crime;

victims who are vulnerable to conduct

[Recommendation and Scope of Recommendations] Special Priority, Imprisonment of 6 months to 3 years of September

(b) A second crime;

[Determination of Type 1] In general injury to a violent crime / [No. 1] General injury

【Specially Maternists】 Mitigation elements: Mental and physical disability, non-competences

Aggravations: Victims vulnerable to serious injuries or crimes;

[Recommendation and Scope of Recommendations] Aggravation, 6 months to 2 months, and 6 months

(c) Third offense: Non-establishment of the sentencing criteria; and

(d) Scope of recommending punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than six months (a concurrent crime with an offense for which the sentencing criteria are not set);

(e) Scope of recommended sentences revised by applicable sentences: Six months to five years (in cases where the upper limit of the range of sentence recommended by the sentencing guidelines is inconsistent with the statutory applicable sentences, it shall be in accordance with the statutory applicable sentences).

3. Determination of sentence: Three years of imprisonment; and

For the same reason as the above 3-A clause, the sentence shall be determined as per the Disposition.

The presiding judge, judge and judge

Judges Lee Jin-chul

Judge Park Sang-il