The nature of judgment as to whether it falls under mental or physical disability

The existence and degree of capacity to distinguish objects and make decisions referred to in Article 10 of the Criminal Code shall belong to legal issues even though it is a factual problem belonging to the matters to be appraised.

Article 10 of the Criminal Act

On April 30, 1968, 68Do400 decided Apr. 30, 1968 (Supreme Court Decision 3535 decided Apr. 35, 196; Supreme Court Decision 16 ① type 50 decided Apr. 16, 199; Decision No. 122

Defendant

Prosecutor and Defendant

Daejeon District Court Decision 79 High Court Decision 149

The appeal by the prosecutor and the defendant shall be dismissed.

The gist of the grounds for appeal by the prosecutor is that the court below's decision on the defendant's punishment is unfair because of the nature of the crime in this case, and the summary of the grounds for appeal by the defendant and a state appointed defense counsel is as follows: first, according to the written expert witness's written expert witness's written expert witness's written expert evidence at the time of the crime in this case, although the defendant was found to have lost the ability to make a decision and change things, the court below recognized that the defendant had weak ability. The court below erred in the misapprehension of facts that could affect the judgment, and second, the decision of the court below on the defendant's punishment is too unreasonable.

First of all, we examine the first issue of the defendant's grounds for appeal. Even though the existence and degree of the ability to distinguish things and make decisions as referred to in Article 10 of the Criminal Code are the factual issues pertaining to the appraisal, it is reasonable to determine that the established facts about the ability are the serious loss of mind or the legal issues, and that the court below's decision was not sufficiently able to distinguish things or make decisions in light of the motive, circumstances, etc. of the crime of this case in the written appraisal report prepared by the non-indicted as appraiser, and there is no ground for appeal.

Next, examining the following circumstances as to the assertion of unfair sentencing by the public prosecutor and the defendant in detail, such as the motive, means, result, degree of damage, age, character and conduct, environment, criminal records and circumstances of the defendant, etc., the determination of the sentence imposed by the court below against the defendant is inappropriate, too heavy, or unreasonable, even in light of the circumstances asserted by the defendant or the public prosecutor, so the grounds for appeal by the defendant and the public prosecutor cannot be accepted in the end.

Therefore, according to Article 364 (4) of the Criminal Procedure Act, each appeal filed by the defendant and the prosecutor shall be dismissed. It is so decided as per Disposition.

Judges Park Jong-cheon-sik (Presiding Judge)