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(영문) 서울고등법원 (춘천) 2018.12.05 2018노136
특정범죄가중처벌등에관한법률위반(보복협박등)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Of the facts charged of this case, violence is committed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) The Defendant was in a state of mental and physical loss or mental weakness under the influence of alcohol at the time of committing the instant crime.

2) The lower court’s sentence (eight months of imprisonment) against an unjust defendant is too unreasonable.

B. The lower court’s sentence against the prosecutor (unlawful in sentencing) is too unhued and unreasonable.

2. According to the evidence duly admitted and examined by the court below regarding the defendant's mental disorder argument, it is recognized that the defendant had drinking alcohol at the time of the crime of this case, but it does not seem that the defendant had no or weak ability to discern things or make decisions. Thus, the defendant's mental and physical disorder argument is without merit.

3. We examine ex officio the assault among the facts charged in the instant case.

The summary of this part of the facts charged is that the Defendant took photographs of the victim F (33 Do) with the cell phone camera before the victim F (33 Do) in this cell phone camera operated by C at around 03:00 on July 14, 2018, and the Defendant took photographs of the victim’s f (333 Do).

It is said that the victim assaulted the victim by making the victim's chest twice in his/her hands by sound, " .........."

However, this is a crime falling under Article 260(1) of the Criminal Act, which cannot be prosecuted against the victim’s express intent under Article 260(3) of the Criminal Act. According to the F’s written agreement compiled in the record, it is recognized that the victim has withdrawn his/her wish to punish the defendant on September 10, 2018, which was the date of the prosecution of this case.

Therefore, this part of the prosecution shall be dismissed in accordance with Article 327 subparagraph 6 of the Criminal Procedure Act, and the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous in the misapprehension of legal principles.

4. Accordingly, the court below's decision is erroneous for reversal of authority as seen above.

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