(영문) 서울고등법원 춘천재판부 2016.1.29.선고 2015노11 판결

The Defendant: (a) discovered a victim who had returned home and pushed down a theft at his ward, and flaged the victim’s face; (b) removed the victim’s face in several times; (c) cut off the victim’s face even when the victim was in excess of his/her face; (d) cut off the dried string, which is a dangerous object; and (e) cut down the Belgium, which was parked in the Defendant’s her lux, and caused an injury to the victim, such as blood transfusion, by leaving the lux at the Defendant’s lux, etc. at several times, by blocking the victim’s face.

2. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) The Defendant’s act of causing an injury to the victim, who was an offender without permission, constitutes self-defense or excessive defense in the course of suppressing the victim.

(2) As soon as the Defendant used when she was the victim, it does not constitute “hazardous objects” under Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter the same).

B. Unreasonable sentencing

The sentence of the court below (one year and six months of imprisonment) is too unreasonable.

3. Ex officio determination

In the trial for the defendant, the prosecutor changed the name of the crime against the defendant from the violation of the Punishment of Violences, etc. Act (a collective injury, deadly weapon, etc.) to the death or injury, and the applicable provisions of the Act to Article 3(1) and Article 2(1)3 of the former Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act. As seen earlier, the prosecutor applied for amendments to the bill of amendment to the indictment to add the purport that the defendant injured the victim as if he did, and caused the death of the victim due to the plenaryty during which he was treated in an unknown state in the congested state in the convalescent hospital. As such, the judgment of the court below cannot be maintained further because our court allowed the amendment.

However, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the adjudication of the court of our country despite the above reasons for reversal of authority. Therefore, it is necessary to first examine this issue and then examine the defendant's additional argument about the facts charged changed in the trial.

4. Determination on the grounds for appeal

A. Provisions of the Criminal Act and legal principles concerning self-defense

If the defendant's act constitutes legitimate self-defense, "an act to defend against infringement of legal interests" should be recognized as "an act to defend against infringement of legal interests in the face of the defense situation, such as "the current infringement of legal interests of the defendant or of others" (see Article 21 (1) of the Criminal Code).

However, if the act of defense cannot constitute self-defense beyond the degree of self-defense and there are extenuating circumstances in light of the overall circumstances, the punishment may be mitigated (Article 2(2) of the same Act), and if such act resulted in fear, bad faith, entertainment, or confusion in night or other extraordinary circumstances, the punishment shall be excluded (Article 2(3) of the same Act).

This provision of the Criminal Code exceptionally allows self-help of an individual in critical circumstances where it is difficult for the State to protect the legal interests of an individual by using police power, etc., and furthermore, considering the practical limit of human ability to cope with such situation when determining whether to punish or not, it can be understood that it clearly expresses that the state's use of the state's law for private retaliation or punishment.

As a requisite for the establishment of self-defense, a defensive act includes not only pure hydro-defense but also anti-defense form including active anti-defense. Whether there is a considerable reason should be determined by comprehensively taking into account all specific circumstances, such as the type, degree, method of infringement of legal interests, and the kind, degree, etc. of legal interests that may harm the infringement (see, e.g., Supreme Court Decisions 2007Do1794, Apr. 26, 2007; 92Do2540, Dec. 22, 1992). The act of defense lacking reasonableness also causes reduction of punishment or exclusion from punishment due to excessive defense (see, e.g., Supreme Court Decision 86Do1862, Nov. 11, 1986); and the act of defense other than defensive defense or the act of defense beyond the limit under social norms (see, e.g., Supreme Court Decision 200Do18628, Feb. 28, 2015).

B. Foreign legislation cases

(1) Clerks

The Defendant asserts that the current legal doctrine and practice are strict and unreasonable in recognizing excessive self-defense or excessive defense. In the process of the trial of the trial of the court of the trial of the court, the Defendant asserts that it is unreasonable to punish the Defendant as self-defense even if he/she murders in a certain countries, and that it is unfair to punish him/her. Therefore, it is necessary to briefly examine foreign legislation to interpret the Criminal Act on self-defense and excessive defense.

(2) the United Kingdom and the United States

According to common law of the United Kingdom, if the other party dies due to physical force exceeding the extent of necessity, a reasonable force can be used. Therefore, self-defense cannot be permitted, and, in order to exercise a fatal force without going through an attack, the obligation to leave first before it must be fulfilled. The self-defense of property is recognized only under extremely strict conditions, and even if a person who intrudes upon the other party's residence is regarded as a legitimate violence and thus recognized as self-defense (RV reconcid [192] L. 792 L. 92R].

Even though the United States has not fulfilled the obligation to withdraw from the Common Law by the end of the 19th century, the United States has adopted a large number of states of the so-called â€˜a set' or â€˜a set of standards' that there is no obligation to withdraw in the area of reasons such as residence, etc.

However, for example, as shown in Article 35.15(A) of the New York Criminal Code, which stipulates that the infringer is causing or believed to be causing a fatal danger and injury, and that the belief is reasonable as a requirement for the use of weapons, etc., the requirement for the use of weapons, etc., is not a case where a person is allowed to immediately respond to the following principles: (a) Doing on actionor Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on Doing on.

(3) Germany

독일의 현행 형법 제32조는 정당방위는 위법성을 조각하는데, 이는 자기 또는 타 인에 대한 현재의 부당한 공격을 방어하기 위해서 필요한 방위행위라고 규정하고 있다 ("Strafgesetzbuch (StGB) $32(Notwehr) (1) Wer eine Tat begeht, die durch Notwehr geboten ist, handelt nicht rechtswidrig. (2) Notwehr ist die Verteidigung, die erforderlich ist, um einen gegenwärtigen rechtswidrigen Angriff von sich oder einem anderen abzuwenden."). . 한 독일 형법 제33조는 혼란, 두려움이나 공포로 자기방어의 한계를 초과한 경우는 처 벌할 수 없다고 하여 우리 형법 제21조 제3항과 유사한 면책적 과잉방위를 규정하고

("Strafgesetzbuch (StGB) $33(Überschreitung der Notwehr) Überschreitet der Täter die Grenzen der Notwehr aus Verwirrung, Furcht oder Schrecken, so wird er nicht bestraft.").

독일 법원은 "폭력적 방위행위를 한 자가 자신의 명예를 손상하지 않으면서 정 당한 이익을 지키는 방법으로 공격자를 피할 수 있었던 경우, 그 폭력적 방위행위 (gewaltsame Abwehr)는 특히 그로써 사람이 사망할 수 있는 경우 건전한 국민관념 (gesunde Volksanschauung) 에 반하므로 필요성을 인정할 수 없다" 고 판시하거나(RGSt 71, 133), 경미한 법익을 보호하려고 사람을 살해하는 것은 '건전한 법감정(gesundes Rechtsgefuhl)'과 자연법에 반한다고 판시하는 등(OLG Suttgart DRZ 1949, 42) 정당방위 의 요건을 제한하여 해석하고 있다.

(4) France

현행 프랑스 형법 제122-5조는 "자기 또는 타인에 대한 부당한 침해에 직면하여 그 즉시 정당방위의 필요성에 따른 행위를 한 자는 형사상 책임이 없다. 다만, 방위 수 단과 침해의 중대성 사이에 불균형이 있으면 그러하지 아니하다"("N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-mêlme ou autrui, accomplit, dans le même temps, un acte commandépar la nécessitéde la lé gitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravitédel'atteinte.")고 규정하고, 나아가 "재산에 대한 중죄 또는 경죄의 실행을 저지 하기 위하여 살인 외의 방위행위를 하는 자는 형사상 책임이 없다. 이 경우 방위행위 의 수단이 범죄의 중대성에 비례하고 추구한 목적에 엄격하게 필요한 것이어야 한 EZ"("N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyensemployés sont proportionnés ala gravitéde l'infraction.") 고 구체화하여, 침해에 대응 한 반격이 부득이 필요하더라도 공격의 심각성에 비례하지 않은 방위 수단을 선택하거 나, 공격에 직면한 순간이 지난 후에 비로소 방위를 개시한 때에는 형사책임을 피할 수 없음을 명백히 하고 있다.

(5) Japan

Article 36 (1) of the Japanese Criminal Code provides for the requirements of self-defense and uses the expression "the act which he or she has inevitably taken" in order to defend his or her or others' rights, which means that the anti-defense act should be reasonable as a defense means against infringement. Meanwhile, Article 36 (2) of the Japanese Criminal Code provides for excessive defense as a ground for voluntary reduction or exemption of punishment on the ground that the act exceeding the extent of defense can be mitigated or exempted according to the circumstances.

In a case where, as a result of comparison and comparison of the risk of infringement of legal interests and the infringement of legal interests caused by the act of defense, the court of Japan brought about a serious result even if the risk is not faced with a serious situation where the risk is too superior, for example, the establishment of self-defense is not recognized in a case where the other party was killed by the act of defense using dangerous objects such as a knife against the infringer who was attacked by the first hand

(6) Sub-committee

Ultimately, the specific expression that individual countries set the requirements for self-defense or excessive defense may vary depending on various factors, such as their respective systems, culture, and history. However, at least, even if there is a current infringement of legal interests, it is generally consistent with the view that the necessity of anti-defense, proportionality, and social reasonableness, etc. are presented based on certain limitations in doing counter-defense. In light of these cases of each country, the act of attack requires "reasonable reasons" as the requirements for self-defense, or the act of attack is unreasonable in Korea, which excludes the subject of application of excessive defense from the source of source.

C. Specific progress of harmful act and recognition of the defendant's situation at the time

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the lower court, the following facts can be acknowledged.

(1) Initial face-to-face and assault circumstance

On March 7, 2014, the Defendant, who is a youth of 19 years of age, went back to the original week after undergoing a physical examination by the Government-Si on March 7, 2014, and went back to the original week, and went home from 20:00 to 03:0 on the following day (the day on which the instant crime was committed).

The defendant's dwelling place in the first floor is independent of the other parent's dwelling place, and the defendant and the mother living on the second floor, and they gling themselves. From 10:0 p.m. to 10:0 a.m. on the following day, the defendant discovered the second floor of the living room and the room in the middle to 10:00 a.m., even though the mother of the ordinary f.m. worked at the g. g. g., the second floor of the living room and the room in the middle to f.m., the defendant discovered the second floor of the living room and g. considered the second floor of the living room and opened the second floor of the house, and found the stolen objects by intrusion at that end, and g. three meters away from the victim who g. to g., the living room in the middle.

Although the Defendant was the victim, the Defendant was her answer, but she was trying to flee, and when her face was taken by drinking. While her eye, she was faced with her eye, she was knee and knee kned in the front side of the room that she was kned, and her face was kned with two kneds. The Defendant again her face and her face was kneed by drinking and her absium (hereinafter referred to as “the first assault committed by the Defendant to the victim”).

(2) Further violence and police reports

The Defendant was in the state of suspending the use of a mobile phone at the time. On the second floor, when there was no telephone device, the Defendant left the door with 1st floor and added the entrance door to the police, and caused the body again, and found the victim in front of the right-hand side of the ward. Accordingly, the Defendant was aware of the victim who was in front of the right-hand side of the ward. The Defendant: (a) had the victim mind that he would not escape until she completed the report; (b) had the victim saluted with the mind that she would completely control the victim’s escape; (c) had the victim saluted on several occasions; and (d) had the victim saluted down with alknifd as soon as alkin aluminium was dried, she laid down several times by cutting down the stacker belt that she was worn (hereinafter referred to as “additional assault” in this part).

피고인은 시끄러운 소리를 듣고 2층으로 올라온 외조모의 휴대전화로 03:19:46 경 112에 전화를 걸어 "이상한 남자가 집에 들어와 있어 때렸다, 2층으로 올라와 달라" 고 신고를 하고, 친구들에게도 우리 집에 도둑놈이 들었으니 좀 와 달라고 전화하였으며, 03:29:01경 다시 112에 전화를 걸어 출동 여부를 확인하고 빨리 와 달라고 재촉하였는 데, 그 직후 도착한 경찰이 119를 불러 응급조치를 취할 때까지 피고인 스스로는 119 에 구조 요청을 하거나 응급처치를 하지 않았다. 피고인의 경찰 진술에 따르면 그가 112에 신고할 당시 피해자는 얼굴 부위에서 피를 흘리면서 엎드린 채 아무런 움직임 없이 코를 골고 있었다(증거기록 제31쪽), 원주경찰서 C지구대 소속 경위 D, E팀 소속 경사 F가 출동하여 찍은 현장 사진에 따르면, 당시 바닥에 쓰러져 엎드린 피해자의 얼 굴과 옷, 거실바닥에는 피가 흥건하였고, 그의 얼굴 전체가 퉁퉁 부어 있었는데, 물건 을 훔쳐 가지고 나갈 가방이나 흉기 등은 소지하고 있지 않았다. 피고인은 경찰에서 피해자가 집 안의 물건을 뒤진 흔적은 있었지만 어지른 정도가 심하지 않았던 것으로 미루어 보아 그가 침입하고 얼마 지나지 않아 자신과 마주친 것처럼 보였다고 진술하 였다(증거기록 제33쪽).

(3) Defendant’s statement and attitude concerning the background and circumstances of the assault

The Defendant, when receiving the first investigation from the police, committed a assault against the victim for about 5 minutes to 10 minutes, and at the prosecution, the Defendant stated that he committed a assault for about 20 minutes to 30 minutes (Evidence Records No. 31,89). On the other hand, the Defendant asserted that he was merely a 4-minute of the victim in the trial court, and that in the investigation agency, the Defendant asked the investigator in charge of the investigation to the extent that he did not properly memory the victim, and asked the investigator in charge of the investigation to the extent that he did not properly associate with it (Evidence No. 548, 549 of the trial record).

On the other hand, at the time of the initial and additional assault by the Defendant himself consistently, the victim caused the body in which he wanted to flee only without any her hand, and the victim did not appear to have taken away the surrounding things, taken away a deadly weapon, or carried it up to himself (Evidence No. 32, 39, and No. 533, 553 of the trial record). Nevertheless, the Defendant did not give any special explanation as to the reason for the serious assault of the victim at an investigative agency, and only when it comes to the court, he did not appear to have been in the new body of his mother and mother living together, and that his mother or her mother was found to have been guilty of robbery, rape, or rape, and that she did not actively take place in his ward’s knife knife knife knife 3, 2005.

In the police, the defendant stated that even if the victim intrudes on his own residence at night and steals the object, it is excessive to reflect his behavior. The prosecutor also asked the victim whether his behavior is self-defense and asked him about his behavior as self-defense, so the victim was not self-defense (Evidence No. 32,90 pages). However, at the trial court of the party, the defendant stated that he made such statement because he did not accurately know the legal requirements of self-defense at the time when he was investigated by the investigative agency, and made such statement (No. 51 pages of the trial record).

(4) The situation of the victim immediately after the crime and the circumstances leading to his death

The victim suffered injuries, such as a closed sacratic saves, inner saves, external saves, and savesaves, which could not be known due to the Defendant’s assault, and lost consciousness on the spot. The police, who called the rescue team at the site, sent the victim to the G Hospital’s hospital, and the medical personnel immediately conducted two saves and saves immediately in determining that the victim’s life was in critical condition, but failed to take part in the extension of the victim’s life. The victim was under long-term hospitalization in the surgery of the above hospital without recovering consciousness. On July 11, 2014, the victim was under long-term hospitalization in the surgery of the above hospital, and the victim continued to suffer death on December 25, 2016 during the process of being hospitalized to H hospital in a state where the victim was hospitalized into the hospital, saves and savesaves.

D. The nature of self-defense

(1) The situation of self-defense

When the defendant returned home, the victim was in the presence of the victim who intrudes into his/her residence and steals objects at night. As such, the victim’s property and his/her family’s peace in residence can be said to continue to be a situation where the act of impairing the legal interests of the defendant and his/her family members was committed. Therefore, the circumstance that the victim unfairly infringeds the legal interests of the defendant or his/her family members at the first point of time can be sufficiently recognized.

(2) An act to defend himself/herself or another person's legal interest;

The victim was not in possession of a deadly weapon or stolen object, and the defendant and the Madromama, who did not have any particular resistance or attack, showed an attitude to take a walk and flee. As a result of the defendant's initial assault, the victim was used on the floor by her draft, and only her body was blucent, but did not appear against the defendant due to the use of drinking her body. Accordingly, the victim's unfair infringement was once terminated.

After that, even though there is no circumstance to view that the victim was trying to escape by continuously avoiding the defendant, and that the victim was trying to start a new legal interest again, the defendant, on the ground that the victim was able to move early from the place used by his body (in view of the location of the blood trace revealed in the field photographs, even if the distance used by the defendant is based on the direct separation width of men, it cannot be said that the victim was her head or walking back to the point of view that the victim was able to escape until her head or walking, and that the victim did not have any further defense to the extent that the victim was able to have his head or walked to the point of view, and that the defendant was able to see that the victim’s initial act of assaulting the victim’s body cannot be seen as an initial act of assaulting the victim’s body at the same time, and thus, it cannot be seen that the defendant was an initial act of assaulting the victim to the extent that the victim did not have any further legal interest.

In light of the above circumstances, even if there is an inevitable act for the purpose of suppressing the victim's ability to attack and defend his/her own or his/her family's legal interests by securing the victim's aggressive power, it is reasonable to view that the subsequent act after his/her suppression was a dominant intent of attack to the extent that it protects himself/herself and his/her family from the infringement of legal interests and offsets his/her intention to escape from it.

(3) Justifiable reasons

Although the principle of supplement that may cause a minimum infringement to the other party in the choice of the means of defense in self-defense is not applied directly, it is required that at least an act within the necessary limit of defense is a reasonable act that does not violate social ethics (see, e.g., Supreme Court Decisions 2007Do3000, Sept. 21, 2007; 91Da19913, Sept. 10, 1991); and deeming that it may be prejudicial to the safety of the life and body of the infringer only if the defense is for the purpose of protecting the safety of the life and body of the other party or the person's life and body, even if the defense is for the purpose of protecting the safety of the victim's life and body, the importance of the national legal order and the role of the law enforcement agency and the legislation or practice that recognizes the comprehensive self-defense in other words countries cannot be found.

In this case, there is no circumstance that the victim seriously threatens the life or body of the defendant or his family from the date of the initial assault by the defendant to the time of sending the victim to the hospital. Moreover, the victim only attempted to go out of the house of the defendant by hand. As such, there was no concern over additional infringement of the defendant's property or peace in residence. If the defendant intended to prevent the victim from escape, he could sufficiently realize the purpose of defense by any other minor alternative means, such as making the victim's hand, which is used without carrying a deadly weapon, electric wire, tape, KONta, schil, schil, schil, or schil, which are commonly equipped at home and ordinarily equipped with a deadly weapon, even if he weared the victim's seat, or with a large sound, and informing the 1st floor or the residents of the situation they face.

Nevertheless, the Defendant’s act of assaulting the victim in a state already written by concentrating him/her on the part of his/her life activity, and committing an additional assault as soon as he/she did until he/she loses consciousness, does not need to be a means to suppress thiefs who intend to flee without any resistance, and does not go against it. The Defendant’s act does not constitute self-defense, as an act of unlawfully forcing the victim without good cause.

(4) The theory of lawsuit

Although the Defendant’s act was first against the current illegal infringement of legal interests, it cannot be deemed that the intent of attack was tensiond to the extent that it completely replaces the intent to defend the legal interest, and that it was reasonable in terms of social norms, and thus, it does not constitute self-defense. The Defendant’s assertion contrary thereto is rejected.

E. Whether excessive defense is established

(1) The gender of excessive defense under Article 21(2) of the Criminal Act

According to Article 21 (2) of the Criminal Code, punishment may be mitigated or exempted when ‘defense' goes beyond the degree, so in order to be subject to this provision, it should be an act for defense first, and an act for attack is not likely to be discussed from the beginning.

However, after the first assault, no circumstance is found that the victim committed an act that is likely to cause imminent danger to the life and body of the defendant or his/her family members. Accordingly, additional assault is deemed to significantly exceed the general defense limit, and thus, it shall be deemed an affirmative attack rather than an act of defense under generally accepted social norms. As such, Article 21(2) of the Criminal Act does not recognize the grounds for reduction or exemption of the punishment stipulated under Article 21(2) of the Criminal Act.

However, the Defendant alleged in the trial court that it was very unstable in mind that the victim was frightened in robbery or rape in a room in which the mother and the her mother live together with the normal mother, and that the second floor is composed of one room separate from the kitchen and the kitchen room, and it was difficult for the Defendant to take the knife the knife by leading the kitchen to the kitchen and the kitchen and the kitchen, and that it was difficult for the Defendant to take the knife the knife against himself. However, the Defendant’s assertion that the Defendant’s attacked that there was an attack against the truth and caused the Defendant to commit the crime of this case by mistake that there was an attack or will against the victim, and thus, it may also be prejudicial to the 'M

However, in addition to the facts acknowledged earlier, the following circumstances that can be acknowledged by evidence duly adopted at the lower court and the trial, namely, ① the Defendant stated in the police that he attempted to flee even if only after the last assault was inflicted upon the Defendant (Evidence No. 30 pages) and ② the Prosecutor stated that the Defendant was able to use the victim’s face and to attempt to flee on the cell floor, and that the Defendant did not know about the fact that the Defendant did not have any other lawful acts of assaulting and making an attack (No. 86 pages of documentary evidence) but did not appear to have been able to know that the Defendant did not have been able to know the victim’s body or to have been able to know about the fact that the Defendant did not have been able to know about the fact that the Defendant did not have been able to know about the Defendant’s body or to have been able to know about the fact that the Defendant did not have been able to know about the fact that he had been able to know about the Defendant’s body or to have been able to know about the Defendant’s body.

(2) The gender of excessive defense under Article 21(3) of the Criminal Act

In addition to the requirements of Article 21(2) of the Criminal Code, in order to constitute an excessive defense as stipulated in Article 21(3) of the Criminal Code requiring that the act “influences in the night or other uneasible conditions, fluencing, interesting, or yellow dust”, the act constitutes an excessive defense as stipulated in Article 21(2) of the Criminal Code.

However, as seen earlier, the Defendant’s act cannot satisfy the excessive defense requirement under Article 21(2) of the Criminal Act. Therefore, on different premise, the Defendant’s act is an excessive defense under Article 21(3) of the Criminal Act.

(f) Ministry of Gender Equality;

The defendant asserts that the defendant's act of the defendant was one of the grounds for assaulting the police by considering the victim's self-help even though she was the victim's escape, and the police did not have any possibility of excluding illegality because the defendant's act constitutes a legitimate act as an arrest of a private person in the act of committing an offense.

Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). A private person’s arrest of a flagrant offender is an act prescribed by statutes and thus illegal dismissal or rejection of illegality (Article 20 of the Criminal Act), and an act of arrest of a flagrant offender beyond reasonable limits is not deemed an act under statutes, and whether an act of arrest of a flagrant offender goes beyond reasonable limits should be determined upon whether the act satisfies the general requirements of a political party (see, e.g., Supreme Court Decisions 2011Do3682, May 26, 2011; 98Do3029, Jan. 26, 1999). Whether a certain act is a justifiable act as a ground for excluding illegality ought to be determined individually by examining specific circumstances, and whether it is a justifiable act. A justifiable act does not meet all the requirements of motive and purpose, legitimacy of the act, means and method, reasonableness of legal interests and legal interests, balance between the act, and supplementary means or method other than the act.

In light of the concept of arrest, it is assumed that the arrest against the other party’s will would be limited to the new physical activities to prevent him from moving to another place, or that he would not temporarily correct the entrance and exit of the building, if necessary, or that he would not temporarily correct the entrance and exit of the building. They are basically premised on the other party’s intention to move. In light of the concept of arrest, it is only a unilateral life, and it cannot be viewed as an execution or preparation for the arrest.

Even if it is deemed that the crime of this case can be included in the concept of arrest, it cannot be deemed that the method of selecting the method of taking the victim's head against the rule of the victim's head or making the victim's head using sacrifies, sacrifies, and sacrifies, etc., without taking other measures that cause less damage to the victim, meets the requirements such as reasonableness of the method, balance between the protection interest and the infringement interest, urgency and supplement, etc., and thus, the crime of this case cannot be deemed as a justifiable act.

5. Judgment on the changed facts charged

A. Defendant’s assertion

Even if the defendant suffered an illegal injury to the victim, he/she did not immediately die as a result of the death of the victim, but instead died of 10-month medical treatment (293 days after the death of the victim) by intervention of abnormal and special factors, such as the medical malpractice and room of the king or hospital. Thus, there was no causal relationship between the injury and the death, and the defendant could not have predicted the death.

B. Legal doctrine

In order to establish a crime of injury resulting from an aggravated aggravated crime, the causal relationship between the consequence of injury and death, which is a basic crime, and the predictability of such outcome, namely, negligence, should be established (see, e.g., Supreme Court Decision 2014Do6206, Jul. 24, 2014; 2003Do2796, Dec. 26, 201).

Even if the Defendant’s act did not directly cause the victim’s death, where another indirect cause that occurred from the Defendant’s act combined to cause the death result, the causal relationship may be recognized between the act and the death (see Supreme Court Decision 2011Do17648, Mar. 15, 2012). The existence of predictability ought to be closely examined in concrete circumstances, such as the degree of assault and response of the victim, etc. (see Supreme Court Decision 90Do1596, Sept. 25, 199).

C. Determination

According to the death diagnosis of the victim prepared by the doctor affiliated with the H Hospital, the victim’s direct private life is closed, and the cause of the outbreak is imbalanced due to an empty blood, and the right-hand light of the two parts after being damaged. However, even if the patient subject to long-term hospitalization and surgery due to the climatic damage, such as the victim’s climatic and dyssis, even if he/she turns out with the hystrophism, the possibility of hystrophism increases due to the hystrophism caused by the hystrophism caused by the hystrophism and the hystrophism, and the patient died with the hystrophism, and the patient’s hystrophism cannot be seen as being the only cause of death between the victim and the 3-year hystrophism on the day of death and the patient’s hystrophism on the 10th anniversary of the death of the victim.

The Defendant asserts that the negligence of failure to discover abnormal signs due to his/her negligence in identifying the infection of the victim’s disease at H Hospital was a critical opportunity for the victim’s death. However, as seen earlier, the Defendant could not expect recovery even if he/she had received constant medical treatment in the future due to the state of mixed water and booming in the first hospitalization at the hospital on July 11, 2014, except for luminous reflects function. Furthermore, examining the record of the medical records submitted at the above hospital in the first instance, the medical doctor and nurse at the above hospital can be recognized as having a death room where the victim was hospitalized until the victim died, and the treatment process, and active signs are regularly observed. Although the medical records did not record changes in the body temperature of the victim, the medical personnel in charge was neglected to conceal the victim, or the victim could not have been expected to suffer from the previous disease due to the combination of the records, and thus, the causal relationship between the victim’s death and the second instance medical records can be acknowledged.

Furthermore, it is clear that the Defendant, at the investigative agency, had focused on the victim’s head due to one’s own outbreak, etc., and the victim was faced with a large quantity of head and was in an emergency operation immediately after the instant crime, and the victim was in a critical condition, even though he was in an emergency operation, it would have intentionally inflicted serious injury upon the victim’s life, such as 30 minutes or more of the time when the victim committed assaulted the victim, 4 minutes or more as the Defendant’s assertion, and 4 minutes or more, and the degree of serious harm to the victim’s life. In particular, the head is a part of the body where the human life is directly connected with the human life and body of the victim, and the head may die if there is a serious physical shock. As such, it is easy to view the victim’s face as a drinking, and then the victim could not have been able to suffer from the disease for a long time, and the victim could have been able to suffer from the disease for a more specific period of time, even if the victim could not have been able to suffer from the death.

Ultimately, since both the causal relationship and possibility of the consequences of the injury and death can be recognized, the Defendant cannot avoid liability for the crime of bodily injury, which is a result of aggravated aggravated crime. The assertion by the other Defendant is rejected.

6. Conclusion

Inasmuch as it is impossible to maintain the judgment of the court below as the prosecutor found guilty of the facts charged that the prosecutor changed on an exchange basis, the court below reversed ex officio the judgment of the court below pursuant to Article 364(2) of the Criminal Procedure Act without examining the Defendant’s assertion of unfair sentencing, and rendered a new judgment as to whether the defendant was guilty of injury or death (in a case where it is recognized that the defendant was guilty of the crime of death or injury, whether the defendant was a dangerous article for construction as soon as he

Criminal facts

On October 08, 2014, at around 03:15, the Defendant returned to his residence in Ma, and opened the second floor and opened the living room. At this point, the Defendant told that “I must see what I would you?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

Summary of Evidence

It is the same as the statement in the corresponding column of the decision of the court below after deducting 1.1's death diagnosis report from the end of 'the summary of evidence' of the decision of the court below. Therefore, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 259(1) of the Criminal Act

2. Reduction of a small amount;

Articles 53 and 55 (1) 3 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

3. Suspension of execution;

Article 62(1) of the Criminal Act (Liguing normal circumstances)

4. Social service order;

Article 62-2 of the Criminal Act

Reasons for sentencing

1. The scope of punishment by law;

From January and June to 15 years of imprisonment.

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

[Determination of Punishment] General Injury to Violence Group: Type 3 (where the result of death has occurred)

[Special Sentencings] Mitigations: Where the victim is fully responsible for the occurrence of the crime;

[Scope of Recommendation] 2 years to 4 years (Mitigation of Mitigation)

3. Application of the principle of no disadvantage change prohibition

In a case involving Defendant only appealed, according to Article 368 of the Criminal Procedure Act, regardless of whether the appellate court has suspended the execution of a sentence in accordance with the principle of prohibition against disadvantageous alteration, a sentence heavier than the sentence to be sentenced to the lower court may not be imposed (see Supreme Court Decision 2011Do11700, Apr. 13, 2012). There is no room for any different interpretation as to whether the application of the principle can be applied to the case where the prosecutor amends the indictment at the appellate court as a result of the occurrence of additional damages, such as the victim’s pardoned the same principle. However, the sentence of one year and six months sentenced by the lower court by applying it in favorable direction to the Defendant shall be limited to the sentence to be sentenced by the Korean court.

4. Determination of sentence;

Taking into account the circumstances in which the victim invadeds on the defendant's house and tried to steals an object into the defendant's house without any resistance, and eventually causing death, the defendant's behavior cannot be deemed to be a minor possibility of criticism. The defendant, even if he was fluencing so, excessively sought the head and head, etc. that may lead to death more excessively than necessary, and the victim did not take any relief measures even if she reported that she was deprived of consciousness. In addition, her punishment P, who served as the guardian of the victim, was cut away by her leader due to large hospital expenses, etc. of the victim, while she committed the crime in this case, and then she complained of the victim's scar and Qu, which is the victim's scar and P, a large mental suffering.

However, the Defendant’s act does not constitute self-defense or excessive defense. Even if the Defendant’s act did not constitute an excessive defense, the fact that it is impossible to deny that the Defendant’s act was committed against the Defendant’s house without permission by entering the Defendant’s house, which led to the Defendant’s crime of larceny. The Defendant’s act of committing the crime of larceny can be sufficiently taken into account even if it cannot be a ground for the exclusion of illegality, and even if it is difficult to constitute a ground for the exclusion of liability. The Defendant deposited KRW 5 million for the victim’s bereaved family members, even in difficult home circumstances, deposited 5 million won for the victim’s bereaved family members, and was treated due to stress and uneasiness caused by stress. The Defendant still has no record of criminal punishment at the young age, the Defendant’s act of taking into account the fact that there was no record of criminal punishment at the age of the young, the Defendant’s wife, appearance, appearance, appearance, and appearance of the Defendant’s community service and guidance, and other circumstances that were presented before and after the execution of the crime.

Judges

First Instance (Presiding Judge)

Sym

Organic Smoking

Site of separate sheet

United States, U.S. and other legal resources

Chuncheon Type 1 Masters;

Matters to be observed by persons subject to probation, community service or education;

(g) Violation of the Punishment of Violences, etc. Act (abstinence by a group, deadly weapon, etc.) (abstinence by a recognized crime)

(Death, etc.)

Defendant A

The term of imprisonment with prison labor of one year and six months, probation three years, and 240 hours;

Probation or community service or lecture attendance order imposed on the accused becomes final and conclusive, a probation office within ten days;

Defendant shall report to the probation officer, and the Defendant shall be subject to guidance by the probation officer and observe the following rules:

I, on their own, endeavor to become a sound social person. When I violate the following obligations, the Gu shall:

It may be authorized and the suspension of execution may be cancelled.

General Obligations

1. They shall reside in a residential area and have an occupation;

2. Persons who throw away bad habits leading to crimes and are likely to commit a crime, and persons who are likely to commit a crime;

It shall not be an educational or mileage.

3. He/she shall comply with the guidance, supervision and visits of probation officers and follow instructions on execution.

4. They shall report to probation officers in advance when they change their residence or travel at home or abroad for not less than one month.

Special Observances

The presiding judge or assistant judge;

심급 사건

서울고등법원 춘천재판부 2016.1.29.선고 2015노11