(영문) 서울중앙지방법원 2014.4.25. 선고 2013고합1178 판결

At around 19:30 on October 17, 2013, the Defendant prepared the victim D(49 years of age) with the underground space of the second floor in Gwanak-gu in Seoul Special Metropolitan City, Seoul, 16:00 on the same day, while drinking together with the victim, the victim did not call the Defendant at the location where he provides meals with other people at around 16:0 on the same day, and the house owner does not pay monthly rent, so he did not pay the Defendant a little amount of money, so he did not dispute the victim with the victim. 1), the Defendant tried to kill the victim by making an annoying it, and used the kitchen, etc. at the above victim’s room, and used it again for 5 days, to kill the victim, such as a knife, knife, knife, and 193 meters, and then take part in the kitchen, and then take part in the kitchen. The Defendant tried to take part in the victim’s body, such as the victim’s hair.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness D;

1. Partial statement of witness E in the second protocol of the trial;

1. A protocol of examination of part of the defendant by prosecution;

1. Medical certificates, appraisal certificates, records of seizure, and reports on the occurrence of a contract;

1. Each photograph;

Application of Statutes

1. Relevant Article of the Act and the choice of punishment for the crime;

Articles 254 and 250(1) of the Criminal Act

2. Statutory mitigation;

Articles 25(2) and 55(1)3 (Attempted Crime) of the Criminal Act

3. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. As to the assertion that there was no intention to murder with the kitchen knife with the victim.

A. Summary of the argument

The Defendant, on the same day, her drinking together with the victim, her boomed with the victim, and her boomed with the victim, and the victim her boomed against his her boom, and the Defendant her knife with his knife, and the Defendant did not her knife with the victim. Even if the Defendant had a kitchen knife against the victim, the Defendant cannot be deemed to have had the victim committed the murder in light of the motive and background of the crime, the degree of

B. Determination

However, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court (hereinafter referred to as "each evidence of this case"), the defendant should be deemed to have committed attempted crimes while intending to display a kitchen knife or to kill the victim as stated in its holding, while at least the defendant fully aware or predicted the possibility or risk of the victim's death due to dolusor's own act. Therefore, this part of the argument is unacceptable.

1) First, after the occurrence of the instant crime, the victim stated consistently from the time of the instant crime to the police with the kitchen knife, "the defendant has knife knife knife knife knife knife knife knife knife and knife knife knife knife knife knife knife. at that time." The defendant clearly expressed his face at that time." The above statement not only maintains consistency as much in major parts, such as the identity of the perpetrator, the process or method of the crime, etc., so it is not possible to directly experience the content, and there is no other obvious circumstance to suspect that the statement is false. The whole credibility of the statement can be recognized, and the defendant also makes efforts to reach an agreement within the rapid time" in the prosecution process with the intent that "the victim's statement is credibility and credibility."

2) In addition, the victim made a statement in this court to the effect that "I would drink with E, etc. immediately before the crime of this case before the crime of this case, and after the victim left room in order, I would like to drink with the defendant, and that "I would like to drink with the victim at around 19:00 on the day of this case, I would like to drink with the victim at the victim's room immediately before the occurrence of this case," and the defendant also stated that "I would like to drink with the victim at the victim's room until the day of this case," and that "I would like to drink with the victim at least after the victim 19:0 on the day after the victim she went through the day of this case, such as E, and after the victim went through the day of this case, I could not drink with the victim at least 19:40 on the day of this case's crime reported to the police, and that I would like to have reached a relatively short time between the victim and the defendant's day of this case's intrusion, not between the victim and the victim.

3) On the other hand, the Defendant asserted to the effect that, as much as the victim had had had a history before the instant crime, the victim might have been able to take the kitchen knife in the instant case.

However, the victim suffered a knife on the right side, etc. due to the crime of this case, but the damaged part itself is difficult to contact the victim's hand, and it is extremely difficult to see that the victim under the influence of alcohol was able to do so by other means, and even according to the legal statement of E, etc., even if the victim was able to do so by other means, it is hard to see that the victim was able to do so. Therefore, the defendant's assertion that the victim could have self-harm the victim because the victim was flife to the defendant, and it is not clear whether there was a motive to flife the defendant as the offender, or the victim's self-harm that the

4) Furthermore, the Defendant argues to the effect that the kitchen blades used in the instant crime were in custody of the victim in his usual room, and that it was not prepared by the Defendant. However, the victim consistently stated to the effect that “it is only his own possession of the kitchen in his usual room, and the above kitchen blades are not owned by his own,” and the E also has the kitchen blades in this court, “it is not easy that the kitchen blades used in the instant crime are in the victim’s room, and the kitchen blades used in the instant crime are written in his own room, and it is not known that the kitchen blades used in the instant crime are the kitchen blades, and that there are two kitchens on the day of the instant case are written statements corresponding to the victim’s statement.” As long as the victim made a statement corresponding to the above victim’s statement, it is also difficult to believe that the Defendant’s assertion that the above kitchen was in the victim’s room at

5) Lastly, the kitchen knife used by the Defendant as a tool for the instant crime falls under a deadly weapon with the length of 19cm, the knife of the knife would be 19cm, and the knife would be dead or fatal, and the Defendant would be able to kill or injure people, and the Defendant would be able to have a knife the body of the victim who was in the state of infnife by drinking with the above kitchen knife at the time of the foregoing kitchen knife, or with the knife which requires treatment for 25 days to the victim, so the Defendant also could have sufficiently predicted the fact that if the knife would be flife by the kitchen knife, which is a deadly weapon, the essential institution for the maintenance of life would be damaged, or that there would be a great risk of death due to excessive transfusion, etc.

2. As to the assertion that there was a state of mental disability at the time of the instant crime

A. Summary of the argument

The Defendant, due to a mental disorder accompanied by depression and influence, has the ability to discern things or make decisions at the time of committing the instant crime, and thus, is in a state of mental suffering which lacks capacity to discern things or make decisions, the punishment shall be mitigated.

B. Determination

However, according to the reply to the fact inquiry conducted on December 11, 2013 by the president of the F medical clinic, the Defendant was subject to pharmacologic treatment at the above hospital from April 4, 2011 to October 8, 2013, in light of all the circumstances, including the following: (a) the Defendant had expressed his opinion that the Defendant had not been in a mental state, and that he had already been in a mental state at the time of committing the instant crime; and (b) the process of the instant crime, the process of the instant crime, the means, the Defendant’s behavior before and after the instant crime, and the conversation between the victim and the victim, etc.; and (c) according to the reply to the fact inquiry conducted by the medical specialist on December 11, 2013, the Defendant did not accept this part of the allegation.

Reasons for sentencing

1. The scope of punishment: Imprisonment for not less than two years and not more than 6 months but not more than 15 years;

2. Application of the sentencing criteria: Imprisonment for not less than two years and not more than six months but not more than eight years; and

[Determination of Punishment] homicide, Type 2 (Ordinary homicide)

[Special Aggravation] Aggravations: None of the factors to be mitigated; dolusent murder

[Recommendation Area and Punishment] Reduction Area, 2 years to 4 years to 8 years (the crime of attempted murder is a crime of attempted murder), 1/3, 2/3, and 2/3, respectively, the minimum limit of mitigation range of murder crime of between 7 and 12 years)

[Relationship with the applicable range in law] The sentencing guidelines recommended by the sentencing guidelines are inconsistent with the applicable sentencing guidelines, so the lower limit is in accordance with the applicable sentencing guidelines by law.

3. Determination of sentence: Three years of imprisonment; and

In light of the circumstances of the crime of this case in favor of the defendant or the breath sentence, since the crime of this case itself was committed in the attempted attempt, and the degree of injury of the victim was not much serious, it seems that part of the physical function would not be lost or disability would not remain. The defendant seems to have caused the crime of this case by contingently, such as it appears to have resulted in the crime of this case under the influence of alcohol, and the defendant is able to take into account the circumstances of the crime of this case. The defendant is able to in-depthly grow about his girth, which the defendant has lost his life due to the current alcohol, and is not suitable for the health condition due to the storm, the weakening of eyesight, and the depression.

However, on the other hand, the defendant does not have the quality of the crime, such as unloading the head of the victim who was in the state of kitchen with the kitchen knife, taking the part of the victim such as knife, breast, and the part of the victim who is in the state of kitchen knife for about 25 days, and considering the damage side, it seems that the victim might have lost his life, and there is considerable physical or mental suffering due to the crime of this case, but the risk of the act of this case was extremely high, such as the victim's physical or mental suffering. However, the defendant did not take substantial measures for recovery of damage, so the defendant is still unable to receive a delivery from the victim, and the defendant does not need to consistently punish the defendant with his intention to avoid such violence, such as imprisonment for four years on July 27, 199, and imprisonment for two years on April 1, 2005 with the same kind of crime such as violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.)., and there is no need to punish the defendant.

However, in determining the specific punishment, the following factors were taken into account: the degree of major circumstances favorable or unfavorable to the defendant prior to the determination of the punishment; age, character and conduct, environment, family relationship, the means and consequence of the crime; and the conditions of the sentencing revealed in the trial process of this case; and the conditions of the above sentencing guidelines.

It is so decided as per Disposition for the above reasons.

Judges

The assistant judge of the presiding judge;

Judges Yang Young-young

Judges Park Jae-min

Note tin

1) As to the fact that the Defendant was dissatisfied with the victim at the time when he was dissatisfied with the victim due to the issue of monthly payment of the victim, etc., the Defendant and the victim appeared to have not interfered with the exercise of the Defendant’s right to defense, as long as the Defendant and the victim make an identical statement with the investigative agency from the investigation agency to this court. As such, the motive part of the crime committed in addition to the above part

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