Defendant 1 and one other

Defendants

Freeboard Kim

Attorney Lee Sung-hwan et al.

Seoul Southern District Court Decision 2005Gohap121 Delivered on August 18, 2005

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment with prison labor for 12 years.

The number of detention days prior to the pronouncement of the judgment below shall be 140 days each included in the penalty against the Defendants.

The seized one telecom, one glux, one glux, one glux, one glux, two glux, one disposable glux, and one dlub from each of the Defendants.

1. Summary of grounds for appeal;

A. Error of mistake

(1) Defendant 1

Defendant 1 had no intention to kill or kill the victim due to medical injury, divers, and death. Defendant 1 did not assault or injure the victim due to illness, and there was no intention to kill the victim.

(2) Defendant 2

In light of the fact that Defendant 2 participated in assaulting the victim, but it is difficult to deem that the victim died in light of the degree of drinking and fast-flashing with several times, and that the victim appears to have died due to Defendant 1’s assault, and that Defendant 2 did not have any reason to kill the victim, it cannot be deemed that Defendant 2 intended to murder the victim.

B. Unreasonable sentencing

The sentencing of the lower court (Defendant 1: 15 years of imprisonment with prison labor for a maximum of 15 years, 7 years of short term, and 15 years of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

According to the evidence duly adopted and examined by the court below, the defendants, in addition to the suspicion that the victim had stolen money from Defendant 1's leakage or house, concluded that the victim had sexual intercourse with Defendant 1's father, and took the victim's religious mind against the victim, during the period from February 15, 2005 to March 10, 2005, the victim exempted all of the clothes of the victim until the victim's death and prevented the victim from getting out of the body, and detained the victim in the direction where the defendants living together, such as the victim's hair, dynas, dynas, and dynasium, and the victim's body was in violation of the victim's body to the extent that the victim might have been injured by using the dynasium, dynas, and dynasium, and in addition, Defendant 1's hair and dynasium were abused by using the victim's hair, etc., and the victim's hair or dynas body.

The criminal intent in the crime of murder is not necessarily recognized as the purpose of murder or the planned intention of murder. It is sufficient to recognize or anticipate the possibility or risk of the death of another person due to one's own act, and its awareness or prediction is not only conclusive but also it is so-called doluence. In the case where the defendant asserts that there was only no criminal intent of murder or assault at the time of the crime, whether the defendant was guilty of murder at the time of the crime should be determined by taking into account the objective circumstances before and after the crime, such as the background leading up to the crime, motive, type and method of the crime, degree of attack, and possibility of death, etc. In light of the above facts, it is difficult to view that the victim did not have been aware that the victim was guilty of the crime, and that there was no crime of assault, such as the victim's body, and that the defendants did not have been aware of the victim's homicide until 45 days old, and that there was a strong motive for the crime of assault by the victim.

Ultimately, this part of the Defendants’ assertion is without merit.

B. As to the assertion of unfair sentencing

Although the crime committed by the Defendants is explosive, cruel, and serious result in the victim's life being injured, the nature and circumstances of the crime are extremely heavy, considering the fact that the Defendants complained against the Defendants by mutual consent with the victim's mother Nonindicted Party, Defendant 1 has no record of punishment for the Defendants except for the juvenile protective disposition due to special larceny, Defendant 1 received physical and mental abuse, and Defendant 2 seems to have inherent violence due to his father's drinking wall and student bullying, Defendant 1 appears to have intelligence at the level of mental body, and Defendant 2 was diagnosed to have lack of understanding of social norms such as intelligence at the level of boundary, and thus, this part of the judgment of the court below is justified, and this part of the judgment below's assertion is justified. In addition, Defendant 1 has no record of being sentenced to punishment for the Defendants as of January 15, 198, and this part of the judgment of the court below was found to have been more unfair.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

The respective corresponding columns of the judgment of the court below are as follows.

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

A. Defendant 1

The point of assault: Article 2(2) and (1) of the Punishment of Violences, etc. Act, and Article 260(1) of the Criminal Act.

The point of heavy confinement: Articles 277(1) and 30 of the Criminal Act

The point of murder: Articles 250(1) and 30(1) of the Criminal Act.

B. Defendant 2

The point of heavy confinement: Articles 277(1) and 30 of the Criminal Act

The point of murder: Articles 250(1) and 30(1) of the Criminal Act.

1. Aggravation of 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 the punishment prescribed in the Judgment with the most severe punishment, and adding up the long-term punishment for Defendant 2)

1. Calculation of days of detention;

Article 57 of the Criminal Code

1. Land to be submerged;

Article 48(1)1 of the Criminal Act

Judges Lee Jae-jin (Presiding Judge)