Defendant

Defendant

Maximum personality (prosecution) and Kim Tae-ho (Trial)

Attorney Sok-young

Gwangju District Court Decision 2018Kadan2534 Decided February 6, 2020

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four months.

Of the facts charged of this case, the prosecution against the victim non-indicted 4 is dismissed.

1. Summary of grounds for appeal;

A. The injury inflicted on the victim Nonindicted 5 on February 3, 2018 (the fact-finding person)

Although there was no fact that the Defendant led the victim Nonindicted 5’s outbreak, did not support the side interest, and the Defendant’s act was damaged by the victim Nonindicted 5, the lower court erred by misapprehending the legal doctrine that the Defendant inflicted an injury on the victim Nonindicted 5 due to mistake of fact.

B. The fact that the victim Nonindicted Party 1 was injured on March 8, 2018 (the mistake and misapprehension of legal principle)

The public prosecution against the victim non-indicted 1 was dismissed, since the victim non-indicted 1 was involved in the situation where the defendant was pushed ahead of the defendant's chest, and the defendant did not inflict any injury on the victim non-indicted 1, and even if the defendant's assault against the victim non-indicted 1 was recognized, the victim non-indicted 1 expressed his intention not to want the case to the police officer on the day of the case, so the victim non-indicted 1 expressed his intention not to want the case. Nevertheless, the court below erred by misunderstanding of facts and misunderstanding of legal principles that the defendant inflicted any injury

C. The injury inflicted on Nonindicted 4 on April 9, 2018 (the misunderstanding of facts and misapprehension of legal principles)

In order to avoid assault by Nonindicted 4 of the victim Nonindicted 4, the Defendant took the clothes of the victim Nonindicted 4, and did not inflict an injury on Nonindicted 4. Even if the Defendant did not do so, the lower court erred by misapprehending the legal doctrine and by misapprehending the legal doctrine, even though the wife of Nonindicted 4 was insignificant.

D. The point of defamation (the misunderstanding of legal principles and factual errors)

On the day of the instant case, the Defendant stated that “I do not know that I would know that I would like to say,” but there was no fact that I would like to say, as stated in the facts charged, and Non-Party 2 had already known that I would have been a criminal offender, and the Defendant was unaware that Non-Party 3 was in the past, and thus, the Defendant did not have an intention to defame, and the Defendant did not have a public performance, but the lower court determined that the Defendant had publicly damaged the honor of Non-Party 1 by mistake of facts and misapprehension of legal principles.

E. The use of violence against Nonindicted Party 7 in the middle of February 2018 (a factual error)

Although the Defendant was only aware of a dispute at the victim Nonindicted 7 senior citizens center, and was spawn away, and did not do so, the lower court determined that the Defendant abused Nonindicted 7 of the victim due to misunderstanding of facts.

F. The occupation of assault against the victim Nonindicted 4 on March 8, 2018 (legal scenarios)

Since the victim non-indicted 4 stated that he did not want to handle the case to the police officer on the day of the instant case and expressed his intention not to prosecute him, the court below erred by misapprehending the legal principles that he did not want to punish him.

G. The fact that the assault against Nonindicted 6 was committed on March 30, 2018 and April 3, 2018 (the misunderstanding of legal principles and factual errors)

Although the defendant did not assault the victim non-indicted 6, and the victim non-indicted 6 prepared and delivered a written agreement and expressed his/her intention not to punish the defendant, the court below determined that the defendant assaulted the victim non-indicted 6 and did not have any intention to not punish the victim.

H. The occupation of assault against Nonindicted Party 1 on April 2, 2018 (a factual error)

Although the Defendant did not store water to the victim non-indicted 1, the lower court determined that the Defendant committed an assault against the victim due to mistake of facts.

2. Determination

A. Determination on the injury inflicted on Non-Indicted 5 of the victim on February 3, 2018

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, namely, ① the victim Nonindicted 5 consistently stated that the Defendant was diagnosed by his will on February 5, 2018 (the victim Nonindicted 5 stated that he was diagnosed by his will on the daily day after the second day of the damage day on the ground that the date of the damage occurred on the second day on the second day of the damage day) in the investigative agency and the court of the lower judgment, ② the victim Nonindicted 5 was issued a medical certificate on April 10, 2018, and the victim Nonindicted 5 did not immediately receive a medical certificate on the ground that he did not think that the Defendant was accused of the same village at the time, and the medical certificate was not issued on the second day of the damage day on the second day of the damage day (the victim Nonindicted 5 stated that the victim Nonindicted 5 was diagnosed by his will on the daily day after the second day of the damage day on the second day on the part of the investigation agency and the court of the lower court).

B. Determination on the injury inflicted on Nonindicted Party 1 by the victim on March 8, 2018

The court below acknowledged the following circumstances based on the evidence duly adopted and investigated by the court below: (i) victim non-indicted 1 was unable to flickly and flickly flicked by the defendant in the investigative agency and the court of the court of the court below; (ii) the victim non-indicted 1 was issued a medical certificate on April 9, 2018; (iii) the victim non-indicted 1 did not immediately receive a medical certificate on the ground that there was no idea to file a complaint against the defendant who is the same village at the time; (iv) the victim's first diagnosis was made on March 9, 2018 on the day following the date of damage; (iii) although the contents of the injury were merely stated in the medical record at the time of diagnosis, it can be found that the victim non-indicted 1 complained of flick condition on the front part of the judgment; and (v) the victim's testimony and the defendant did not have any influence on the victim's testimony by misapprehending the legal principles on the victim's testimony on the day of this case.

C. Determination on the injury inflicted on Nonindicted 4 by the victim on April 9, 2018

The court below duly adopted and examined the following circumstances, namely, ① the victim Nonindicted 4, in the investigative agency and the court of the court of the court below, consistently stated to the effect that the defendant was fluoring the victim’s head satis, followed the victim’s bridge and part on the part of the defendant, and fluored the victim’s satis; ② the victim Nonindicted 4 was diagnosed by the victim’s intention as being satisfy and open satisfy from the victim’s will; ② the victim Nonindicted 4 was diagnosed by the victim’s satisfy and open satisfy; ③ the witness Nonindicted 10 also made a statement consistent with the facts charged in the conversation with Nonindicted 1, the victim Nonindicted 4’s husband, and the court of the court of the court of the court below reversed the Defendant’s statement to the effect that the Defendant did not satisfy the victim’s head satisfy; but, in light of the aforementioned legal principles as alleged in the judgment below, the Defendant’s summary order issued the Defendant’s testimony.

D. Determination on defamation

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., (i) the victim non-indicted 1 consistently made a statement to the effect that the defendant 2 and non-indicted 3 had a significant sound to the effect that "the defendant was frightened," and "the aged and frightened," despite the fact that the defendant was faced with his wife," and (ii) Non-indicted 3, who was in the vicinity of the site of the case, stated in the police's inquiry whether the defendant said that "the defendant was frighten," in the process of police investigation, the court below held that the victim's non-indicted 1 was a criminal defendant, and that the victim's non-indicted 2 had already been aware of the victim's criminal record, or that the non-indicted 3 had a close relation with the victim 1, and that there was no possibility of spreading the defendant's speech with the victim, as alleged in the judgment below, the court below's judgment is justified and it is justified in finding the defendant guilty.

E. Determination on the assault against Non-Indicted 7 of the Victim on February 2, 2018

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, ① the victim Nonindicted 7 consistently stated to the effect that the defendant was boomed with the victim’s breath in the investigative agency and the court of the court of the court below, ② the witness Nonindicted 11 also made a statement corresponding to the facts charged at the investigative agency and the court of the court of the court below. In the same purport, the judgment of the court below convicting the victim Nonindicted 7 of this part of the facts charged is justified, and there was no error that affected the conclusion of the judgment by misunderstanding the facts as

F. Determination on the assault against Nonindicted 4 by the victim on March 8, 2018

1) This part of the facts charged

On March 8, 2018, as stated in paragraph (b) of Article 1 of the facts charged, the Defendant: (a) was removed from the victim while he was frightening Nonindicted 1’s her husband, who was the victim Nonindicted 4’s husband; (b) was frightening the victim’s hair; and (c) committed assault against the victim’s chest.

2) Determination

This part of the facts charged is a crime falling under Article 260 (1) of the Criminal Act and cannot be prosecuted against the victim's express intent under Article 260 (3) of the same Act. According to the 112 Report Processing List (Investigation Record 57 pages), the victim non-indicted 4 may recognize the facts that the police officer dispatched on the day of the case expressed his intention not to punish the defendant. [The time of the occurrence of the case in which the facts charged are recorded ( March 8, 2018 09:10) and the time of dispatch ( March 8, 2018 09:10) stated in the above Disposition List. However, in light of the location and act of the case, it is reasonable to view that the victim non-indicted 4 stated in the above Disposition List is the same case as the case in which the victim expressed his intention not to punish the defendant. Thus, the court below's dismissal of the prosecution cannot be justified under Article 232 (3) and (2) of the Criminal Procedure Act.

G. Determination as to the assault against Nonindicted 6 of the victim on March 30, 2018 and April 3, 2018

The victim non-indicted 6 consistently makes a statement to the effect that the defendant she was frightened on March 30, 2018 at an investigative agency and the court of the court of the court below that he she was frightened on the fright, and that he was frightened on April 3, 2018. Thus, the defendant committed an assault against the victim non-indicted 6. In addition, in light of the method and circumstances of the preparation of the evidence No. 2 (Agreement) known by the statement of the court of the court of the court of the court of the non-indicted 6 and the non-indicted 12, the preparation of the above agreement cannot be deemed to have been expressed in a way that the victim's non-indicted 6's intent not to punish the victim non-indicted 6's defendant is apparent and reliable. In the same purport, the decision of the court below convicting the defendant of this part of the facts charged is justifiable, and contrary to the defendant's assertion,

H. Determination on the assault against Nonindicted Party 1 on April 2, 2018

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, ① the victim Nonindicted 1 was consistently stated in the investigative agency and the court of the court of the court below that the Defendant 1 did assaulted Nonindicted 1 of the victim. For the same purport, the judgment of the court below convicted the Defendant of this part of the charges is justified, and there is no error in the misapprehension of the facts alleged by the Defendant, thereby affecting the conclusion of the judgment.

3. Conclusion

The defendant's appeal as to the assault against the victim non-indicted 4 on March 8, 2018 is with merit, and the part to which the indictment is dismissed and the remaining crimes as stated in the judgment of the court below are treated as concurrent crimes under the former part of Article 37 of the Criminal Act and the judgment of the court below that rendered a single sentence should be reversed. Thus, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the judgment below shall

【Discretionary Judgment】

Criminal facts and summary of evidence

In addition to deletion of Article 3-2 of the Criminal Procedure Act, the summary of the facts constituting a crime recognized by this court and the evidence thereof is identical to the description of each corresponding column of the judgment of the court below, and thus, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 257 (1) of the Criminal Act (influence, Selection of Imprisonment), Article 307 (1) of the Criminal Act (influence of defamation, Selection of Imprisonment), Article 260 (1) of each Criminal Act (influence of violence and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

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

Reasons for sentencing

The fact that the defendant repeatedly committed each of the crimes of this case against village residents including the elderly and the elderly, the victims have not been able to get a letter, and the injury against the victim non-indicted 5 is not less than that against the defendant is an element of sentencing unfavorable to the defendant. The defendant's age, character and behavior, criminal records, motive and circumstance leading to the crime of this case, and circumstances after the crime, etc. shall be determined by comprehensively taking into account all of the sentencing conditions specified in the arguments of this case, including the defendant'

Judges Kim Jong-soo (Presiding Judge)