Defendant

Defendant

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Law Firm Han-chul, Attorneys Kim Jong-won et al.

Chuncheon District Court Decision 2009Ma436 Decided February 9, 2010

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Since it is difficult to view that the other party or a third party’s life or body was harmed by social norms due to the operation of the Defendant’s automobile, the Defendant’s crime of this case cannot be deemed to have inflicted an injury on the victim or damaged the victim’s vehicle, as prescribed in Article 3(1) of the Punishment of Violences, etc. Act. However, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant (one year and six months of imprisonment) is too unreasonable.

2. Determination

(a) Summary of the facts charged in violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, an injury), and the Punishment of Violences, etc. Act (a group, a deadly weapon, a damage, etc.)

The summary of the facts charged is as follows: at around 12:59 on May 3, 2009, the Defendant: “Around the road (vehicle registration No. 1 omitted) in front of Nonindicted Party 1’s house located in Gangseo-gu Seoul Special Metropolitan City, Gangwon-gu, Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City”), the Defendant: (a) while driving a model on the road (vehicle registration No. 1 omitted); (b) Nonindicted Party 2, who was under dispute immediately before the Defendant, discovered the Defendant from driving a BM vehicle (vehicle No. 2 omitted); (c) the Defendant stopped his vehicle while driving the said vehicle; (d) the Defendant continued to stop the vehicle while driving the said vehicle; and (d) the Defendant got off the said vehicle with the front part of the said BM vehicle in front of the said vehicle. After that, the Defendant reported the victim’s vehicle to investigate the head of the vehicle against the Defendant and the victim; and (d) the Defendant continued to investigate the victim’s vehicle by using a drug-related article to the effect that “the Defendant interfered with the victim’s treatment.”

B. The judgment of the court below

The court below found the defendant guilty of the above facts charged by taking full account of the presented evidence.

C. The judgment of this Court

We examine whether the Defendant’s above act by using the instant car constitutes an injury to the victim and damages the damaged vehicle under Article 3(1) of the Punishment of Violences, etc. Act.

The issue of whether an article that can kill a person according to the usage of a motor vehicle constitutes a dangerous article under Article 3(1) of the Punishment of Violences, etc. Act shall be determined depending on whether the other party or a third party could promptly feel a danger in light of social norms, depending on the specific case. The same standard of determination shall apply where a motor vehicle causes harm to a person's life or body or damages another person's property (see, e.g., Supreme Court Decision 2007Do3520, Mar. 26, 2009). Thus, in the case of "motor vehicle", where the other party or the third party might feel a danger by shocking a person in front of the motor vehicle with a motor vehicle, e.g., shocking the other party, or shocking the other party at a rapid speed, and where the other party or the third party could feel a danger, it shall be deemed as "hazardous article."

In the instant case, the lower court and the evidence duly admitted and examined the Defendant’s health stand, namely, ① the Defendant continued to follow the Defendant’s vehicle immediately before and after the occurrence of dispute at the time of driving with the victim, and it is difficult to readily conclude that the Defendant had an intention to inflict an injury on the victim or to damage a damaged vehicle by actively driving the vehicle with dangerous articles, and ② the victim’s vehicle at the time of the instant case’s trial did not appear to have been under the influence of 4-5 meters since it was difficult for the Defendant to readily conclude that there was an intention to inflict an injury on the victim or to inflict an injury on the victim by using the vehicle at the time of the instant accident at the time of the instant accident. In so doing, it is difficult to conclude that the Defendant’s vehicle at the time of the instant accident was under the influence of the Defendant’s body at the time of the instant accident, such as the Defendant’s vehicle at a distance of 4-5 meters, and the Defendant’s vehicle at the time of the instant accident was under the influence of the Defendant’s body.

D. Sub-committee

Therefore, among the facts charged in this case, the violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, an injury, etc.) and the Punishment of Violences, etc. Act (a group, a deadly weapon, an injury, etc.) fall under the case where there is no proof of a crime under the latter part of Article 325 of the Criminal Procedure Act, and thus, Article 3(1) of the Punishment of Violences, etc. Act cannot be applied. Although Article 257(1) of the Criminal Act and Article 366 of the Criminal Act apply to the crime of bodily injury under Article 257(1) of the Criminal Act, the court below convicted all of the facts charged in this part

3. Conclusion

Therefore, the defendant's appeal of this case is reasonable, and without examining the argument of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts of the crime recognized by the court and the evidence thereof are as follows. The first line of the judgment of the court below is as follows: "The defendant is in the current period of suspension of execution after having been sentenced to one and a half years of imprisonment with prison labor for special larceny, etc. from the Gangnam Branch Branch of the Chuncheon District Court on August 30, 2007, and on September 7 of the same year, which became final and conclusive on September 29 of the same year." "The defendant is a person who was sentenced to six months of imprisonment with prison labor at the Suwon District Court on September 29, 2009 for a violation of the Act on the Control of Narcotics, etc. (mariju) on March 25, 2010." The second page is as follows; second page "2. Violation of the Punishment of Violences, etc. Act on the Punishment of Violences, etc. (a collective injury, etc., injury to deadly weapons, etc.)"; third page is as "a copy of the criminal records and criminal records of the defendant's judgment"; second page "16."

1. Article applicable to criminal facts;

Article 257(1) of the Criminal Act (Inflicting of Injury) and Article 366(1) of each Criminal Act (Involving Damage and Destruction of Property)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of each fine

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In light of the fact that the defendant has a criminal record several times, and the defendant committed the crime of this case without being aware of the fact that he was sentenced to imprisonment with prison labor for a special larceny, etc. during the suspension period, and the risk of the crime of this case, etc., the necessity of punishment is great. However, the defendant's mistake is divided in depth and reflects his mistake, the victim does not want the punishment of the defendant. When he was punished together with the crime of violation of the Act on the Control of Narcotics, etc. (mariana) in the judgment of the court below, the punishment shall be determined as ordered in consideration of equity, etc. of the defendant's character and behavior, environment, means and result of the crime, circumstances after the crime, etc.

Of the facts charged in the instant case, the summary of the facts charged as to the violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, a deadly weapon, etc.) and the Punishment of Violences, etc. Act (a group, a deadly weapon, a destruction, etc.) are as stated in the above 2. A. As stated in the above 2. C. C., the facts charged in the instant part as stated in the above 2.C. should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the defendant is found guilty of the crime of bodily injury and the crime of causing property damage

Judges Hah Sung-hee (Presiding Judge)