(영문) 서울고등법원 2018.05.30 2018노364 | 리걸엔진

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울고등법원 2018.05.30 2018노364

살인미수

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence imposed by the lower court (five years of imprisonment) is too unreasonable.

B. The sentence imposed by the prosecutor by the court below is too uneasible and unreasonable.

2. Considering the unique area of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct determination under the Criminal Procedure Act, and the ex post facto core nature of the appellate court, the first instance sentencing judgment exceeded the reasonable scope of discretion in light of the following factors: (a) the conditions of sentencing specified in the process of the first instance sentencing hearing and the sentencing criteria, etc.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

Unless there exist such exceptional circumstances, it is desirable to respect the sentencing of the first instance trial (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). The instant crime is that: (a) the Defendant, who was sentenced to five years to imprisonment on the grounds of the crime of this case in light of the motive, tool, method and result of the crime, etc., the nature and criminal situation of the victim was extremely poor; and (b) the Defendant committed a specific violent crime of this case during the repeated crime period of which one year has passed since the execution of the sentence was terminated by being sentenced to five years due to the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.); and (c) the victim complained of the suffering from the crime of this case; and (d) the victim complaining of the suffering of the suffering from the crime of this case, and is disadvantageous to the Defendant.

However, the defendant shows his attitude to reflect by recognizing all of the crimes, and some of the circumstances leading up to the crime.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법

참조판례

-대법원 2015. 7. 23. 선고 2015도3260 전원합의체 판결

유사 판례

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