208 Gohap663 homicide

Kim 00 (46 - 2. Not on duty)

Housing Daegu and Seogu District

Reference domicile racing

Freeboard, Egrasia

Law Firm Doz., Attorney Park Doz.

7 persons

October 27, 2008

A defendant shall be punished by imprisonment for three years.

58 days of detention before this judgment is sentenced shall be included in the above sentence.

except that the execution of the above punishment shall be suspended for five years from the date this judgment becomes final and conclusive.

A seized machine (No. 1 of the seizure list) shall be confiscated from the accused.

Facts of crime

On August 30, 2008, 02: at around 00, the defendant's house located on the third floor of the building in the Daegu-gu, Daegu-gu, 00, the defendant expressed his attitude that he saw the defendant's neck, such as her husband's breath, her husband's breath, and her hand, her scarf that was in the scarf in the scarb in the scarb, and her hand, her booms over the floor, and her breath of the victim who walked the part of the scarf in the scarb in the scarb, and her booms over the floor.

After that, the defendant deducted the above scarp from the victim's scarp, and then killed the victim in such a way as to cause the victim's death from the scarp to the scarp, so long as it is difficult to do so.

Summary of Evidence

1. Partial statement of the defendant;

1. Discretionary statement of a witness;

1. Statement of the prosecutor's office and police interrogation protocol of the accused;

1. A written autopsy report and a written autopsy report;

1. Each report on investigation;

1. Each on-site photograph, vice inspector, and photograph of the defendant;

1. Each written diagnosis and application for carbon;

Application of Statutes

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

Article 250(1) of the Criminal Act (Selection of Imprisonment)

1. Discretionary mitigation;

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

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions in Sentencing)

1. Number of views;

Article 48 (1) 1 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Determination as to the assertion that there was no intention to murder

A. Summary of the assertion

When the Defendant was assaulted by the victim under the influence of alcohol and was faced with the situation where the scarpros are threatened with life, the Defendant was scarf to get out of the above circumstances, and did not intend to kill the victim, and did not intend to kill the victim.

B. Determination

( 1 ) 살인죄에서 살인의 범의는 반드시 살해의 목적이나 계획적인 살해의 의도가 있어야 인정되는 것은 아니고, 자기의 행위로 인하여 타인의 사망이라는 결과를 발생시킬 만한 가능성 또는 위험이 있음을 인식하거나 예견하면 족한 것이며 그 인식이 나예견은 확정적인 것은 물론 불확정적인 것이라도 이른바 미필적 고의로 인정되는 것인바, 피고인이 범행 당시 살인의 범의는 없었고 단지 상해 또는 폭행의 범의만 있었을 뿐이라고 다투는 경우에 피고인에게 범행 당시 살인의 범의가 있었는지 여부는 피고인이 범행에 이르게 된 경위, 범행의 동기. 준비된 흉기의 유무 종류 · 용법, 공격의 부위와 반복성, 사망의 결과 발생 가능성 정도 등 범행 전후의 객관적인 사정을 종합하여 판단할 수밖에 없다 ( 대법원 2006. 4. 14. 선고 2006도 734 판결 등 참조 ) . ( 2 ) 살피건대, 앞서 든 각 증거에 의하면, ① 피해자는 술에 취하여 피고인에게 욕설을 하고 뺨을 때리는 등 행패를 부리다가 화장대 안의 스카프를 꺼내 피고인의 복을 조르려고 하자 피고인이 양발로 피해자의 배 부위를 걷어차 피해자를 바닥에 넘어뜨린 사실, ② 당시 피고인은 아래층에 살고 있던 이웃집으로 피하는 등 현장을 벗어날 수 있었음에도 피해자에게 달려들어 스카프를 피해자의 목에 감은 후 힘껏 잡아당겨 피해자로 하여금 그 자리에서 사망하게 한 사실, ③ 시체검안서에는 직접사인으로 교사 ( 校 死, 스카프로 목조임 ) 라고 기재되어 있고, 주요 해부 소견으로 피해자 경부의 우측 상부 피하에 경미한 출혈, 안면부의 울혈 및 안결막의 일혈점, 폐장의 팽창 및 빈혈상 등이 기재되어 있는 사실, ④ 피고인은 경찰 피의자신문시 " 남편이 저를 잡고 안방 바닥에 밀어 넘어뜨린 후 화장대에 있던 스카프를 꺼내어 저의 목을 감는 것을 순간 저가 가만히 있으면 죽겠다는 생각이 들어 저가 손으로 목에 있던 스카프를 잡고 발로 남편 이이 O의 배를 몇 번 찼는데 남편이 뒤로 넘어지는 것을 보고 저의 목에 있던 스카프를 손으로 잡고 오른손으로 이00의 목에 스카프를 감았다 " 고 진술하였고, 아래층 임차인인 A에게 찾아가 " 내가 영감 죽였지 싶다 ", " 남편이 나를 죽이려고 머리채를 잡고 때려 내가 목을. .. 어떻게 하였는지 모르겠다. 꼼짝하지 않는데 어떻게 된 건지 모르겠다 " 고 진술한 사실을 각 인정할 수 있는바, 위 인정사실에 따른 피고인이 이 사건 범행에 이르게 된 경위, 사용한 범행도구의 종류 및 위험성, 공격을 가한 부위와 공격시간, 피해자의 사인 등을 종합하면, 이 사건 범행이 비록 순간적인 충동에 의하여 우발적으로 일어난 것이라고 하더라도 피고인이 사망의 결과발생 가능성을 인식하고 저지른 행위로서 이 사건 범행 당시 피고인에게는 적어도 살해의 미필적 고의가 있었음이 인정되므로, 피고인및 변호인의 위 주장은 받아들이지 아니한다 .

2. Determination as to the assertion that the act constitutes excessive defense or excessive defense

A. Summary of the assertion

As the Defendant was abused by verbal abuse and assault from the victim and was faced with a threat of his body and life, the Defendant’s act constitutes self-defense. Thus, the Defendant’s act constitutes self-defense. Even if it is not so, the Defendant’s act constitutes excessive self-defense that has exceeded the degree of reasonableness due to fear, light, entertainment, or confusion under night and other extraordinary circumstances, and thus, constitutes excessive defense, and thus, the Defendant’s act of defense constitutes illegal or responsible.

B. Determination

(1) First, for self-defense to be recognized under Article 21(1) of the Criminal Act, there must be “the current unfair infringement of one’s own or another’s legal interest.” Whether such infringement is present should not be determined depending on the subjective circumstances of the subject of the infringement, but rather be objectively determined, and the present nature of the infringement as a requirement should be strictly interpreted and applied in light of the fact that self-defense is the reason why the illegality of a certain act constituting the elements of the crime is exceptionally extinguished. In addition, for self-defense to be established, the act of self-defense should be socially reasonable in light of all specific circumstances, such as the type, degree, and method of infringement of legal interest infringed by the act. The act of self-defense as a requirement for establishment of self-defense includes not only purely non-defense defense, but also anti-defense form, including active anti-defense. However, the act of defense must have considerable reasons for self-defense or other person’s act of defense as an act of defense (see, e.g., Supreme Court Decision 2005Do975, Sept. 25, 20015.

(2) In the instant case, even though the Defendant was assaulted by the victim and the victim was in a situation where the life could be threatened by taking advantage of the victim’s clothes, the following circumstances based on each of the above facts and evidence, namely, ① the victim was under the influence of alcohol to an inaccurate level at the time. ② The victim did not assault the Defendant by using a deadly weapon or other dangerous object. ② The victim was under the influence of using a deadly weapon or other dangerous object. ③ The victim was under the influence of an imminent danger was a vague state. ④ The Defendant was under the influence of an imminent danger. ④ Therefore, even if the Defendant was able to escape from the adjoining site by getting out of the lower floor, it was difficult to view that the Defendant’s act cannot be seen as an act of self-defense or self-defense in light of social norms, and thus, it was difficult to view that the Defendant’s act of self-defense and/or self-defense was under the influence of the victim at night, and thus, it cannot be seen that the Defendant’s act cannot be seen as an act of fear or self-defense.

3. Determination as to the allegation of mental disability or mental disability

A. Summary of the assertion

The defendant committed the crime of this case in such a state that he has no or weak ability to discern things due to the external stress disorder and depression formed in the course of continuous assault from the victim.

B. Determination

(1) Article 10 of the Criminal Act requires that the victim’s mental disorder, other than the above mental disorder such as mental disorder or abnormal mental condition, has lost or reduced capacity to change things due to psychological disorder. Thus, even if the victim was mentally disabled, it cannot be viewed as mental disorder (see Supreme Court Decision 2006Do790, Feb. 8, 2007, etc.). In determining whether the defendant was in a state of mental disorder at the time of committing the crime, it does not necessarily require an expert’s opinion, and it does not necessarily require a long time to view that the defendant was in a state of mental disorder such as mental disorder, and thus, it is necessary to independently recognize that the defendant was in a state of mental disorder such as mental disorder before and after committing the crime (see Supreme Court Decision 200Do790, Apr. 6, 2007).

v. n.

The reason for sentencing is that the crime of this case committed by the defendant, who was under the influence of alcohol, was committed by assaulting the her her husband, and the victim who tried to take the scarf by walking the scarf and cutting the scarf, and then murdered the victim so long as it is difficult to do so. Since human life is the most respected value that should be protected by the State or society, it cannot be used for any reason as well as the act of infringing the individual's life. Considering that the defendant's sibling did not receive any scarf from the victim's sibling, the defendant should be punished with severe penalty corresponding to that act.

However, even if the defendant was married with the victim for about 45 years before his/her life and body during his/her life and had a long-term pain due to domestic violence, he/she was living together with his/her own efforts to care for his/her children by providing various living expenses. On the other hand, the victim did not drink his/her own life after marriage or engage mainly in daily work, and after his/her delivery, his/her family members were frightened by using violence and violence against the defendant and his/her own children, and the victim's life and body were frightencing to the extent that he/she did not seem to have been frightened by the victim's frightencing of life and body after his/her death. The victim, who was frightencing from around 2 years before his/her death and frightencing of the defendant, had been frightened by using the victim's brighten and frighten treatment.

jury verdict and sentencing opinion

Dogna Dogna Dog Dogna Dog

○ All seven jurors guilty

Opinions on the sentencing of terms

○ Three years of imprisonment with prison labor, five years of suspended execution

○ Imprisonment with prison labor for a year and three months, two years of suspended execution;

Judges in order of the presiding judge

Judges Lee Jae-eng

Judge Choi Jong-young