(영문) 창원지방법원 마산지원 2019.8.23.선고 2019고합40 판결

A defendant shall be punished by imprisonment with prison labor for a maximum of ten years and by a short of five years. One knife (No. 1) seized shall be confiscated.

A person subject to medical treatment and custody shall be punished by medical treatment and custody. The request for attachment order shall be dismissed.

Reasons

Criminal facts and facts constituting grounds for medical treatment and custody

The defendant and the respondent for medical treatment and custody (hereinafter referred to as the "defendants") show symptoms such as patriarche, net, damaged language, accident year, spatriarche, spatriarche, limited dynamics, bottled damage, and low judgment-making ability due to mental therapy, and they committed the following crimes under the state that they lack the ability to discern things or make decisions, and have the risk of recidivism.

On January 4, 2018, the Defendant, who was diagnosed by the Jinju National University Hospital, was taking a fluoral disease and taken the flachising the flachis, had the death of the victim on the ground that the brain of the victim B (n, 74 years old) residing in the upper house of the Defendant was connected with her brain and that the victim would suffer from serious pain whenever she turns out, the Defendant was able to die with the victim only on the ground that she would have suffered serious pain.

At around 2019, 4. 24, 08:00, the defendant sent to the defendant's residential area in Changwon-si C apartment complex D, Changwon-si, Changwon-si, the defendant had a food blade (the total length of 35 cm, 22 cm) in the kitchen kitchen, and the defendant's 6th floor was found in the above apartment apartment E, which is the victim's residential area, and the defendant called "the victim was sent to the victim by her 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's '' and 's 's 's 's 's 's 's 's ' 's '.' The defendant was sent to the victim by 's 's 's 's house

On the same day, at around 09:05, the Defendant reported the appearance of the victim waiting for an elevator after getting out of the house in order to get out of the house, and then saw the victim's side, such as the victim, once with the above food knife that had been approaching the victim's rear, and caused the victim to die from a malute and a window in the F Hospital located in the Seocho-si, Changwon-si, 10:20 on the same day by 22 times, such as the victim's side flife, the flife, the flife, etc., flife in front of the corridor, and the flife flife flife flife flif.

Accordingly, the Defendant murdered the victim.

Summary of Evidence

1. Defendant's legal statement;

1. Each police officer's statement of G, B, H, and I;

1. Each protocol of seizure and the list of seizure;

1. A death certificate;

1. To notify the list of inspection at the scene of a change, physical list at the scene of a change, report on the results of a survey at the scene of a change, report on the results of a survey at the scene of a change, emergency medical services, gene assessment report, autopsy report,

1. Sceness, such as a CCTV-cape, all on-site photographs, and CCTV-cape photographs and scenesic photographs;

1. Investigative report (in relation to suspect's Jneological interview and medical record attachment), investigation report (in relation to the details and attachment of a copy of a request for medical care benefits, medical records conducted by a suspect in charge of the Jalology, and medical records), investigation report (in relation to the hearing of the case in the K case of a suspect), investigation report (in relation to the hearing of the first discovery), investigation report (in relation to the suspect's health insurance report), investigation report (in relation to the psychological analysis officer of the Gyeongnam Regional Police Agency), investigation report (in addition to the original copy of a

1. Necessity of the medical treatment indicated in the judgment and risk of recidivism;

Comprehensively taking account of the following circumstances revealed by the descriptions of the aforementioned evidence and the written mental sentiment of the medical doctor employed by the Medical Treatment and Custody Center, the Defendant needs to receive medical treatment at the Medical Treatment and Custody Facility and the risk of recidivism if not receiving such medical treatment.

① From around January 4, 2018, the Defendant showed symptoms, such as the damage from 2017, and was diagnosed by her from her on-site illness on or around January 4, 2018. (ii) The Defendant, while suffering from the above mental illness, her brain connected with her brain and caused severe pain to the Defendant at the time her death, was her death and her death could be her death without her hys. The Defendant did not sufficiently recognize her own mental illness even in 3 Defendant’s statement, and the ability to determine the reality and self-control are likely to significantly undermine her ability.

④ In the result of the mental appraisal of the Defendant, the Defendant stated that “The Defendant requires a long-term professional mental therapy for the early childhood illness, and thus, there is a possibility of re-offending due to mental illness unless he/she is given a professional mental therapy in the future.”

Application of Statutes

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

Article 250(1) of the Criminal Act (Appointment of Imprisonment for Imprisonment)

1. Mitigation of mental disorders;

Articles 10(2) and 55(1)3 of the Criminal Act

1. Illegal punishment;

Articles 2 and 60(1) of the Juvenile Act, Article 4(2) of the Act on Special Cases concerning the Punishment of Specific violent Crimes

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Medical treatment and custody;

Determination on the assertion of counsel under Articles 12(1) and 2(1)1 of the Medical Treatment and Custody Act, Article 10(2) of the Criminal Act

1. Summary of the assertion

Since the Defendant committed the instant crime under the status that he/she was unable to discern things or has no ability to decide on his/her will by putting him/her away from a face of his/her face to a face-to-face exchange, face, etc., the Defendant cannot be held liable to the Defendant.

2. Determination

As seen earlier, the Defendant had a lack of the ability to discern things or make decisions due to an on-site illness at the time of committing the instant crime. However, in full view of all the circumstances acknowledged by the evidence duly adopted and investigated by the court, namely, the fact that the Defendant stated the content of the instant crime in an investigative agency; the Defendant appears to have been aware of the impact of the instant crime at the time of the instant crime; and other circumstances such as the background, means and method of the instant crime, the Defendant’s act after committing the instant crime, etc., it is difficult to view that the Defendant was in a state of mental disorder even in a state of mental disorder, where the Defendant lacks the ability to discern things or make decisions due to the on-site illness at

1. The reasons for sentencing: Imprisonment with prison labor, June 15, 200

2. Non-application of the sentencing criteria;

The sentencing guidelines do not apply to juveniles under the age of 19 at the time of filing the prosecution of this case.

3. Determination of sentence;

A person’s life is the most respected value to be protected by the State or society, and an act of infringing on it cannot be used for any reason. The crime of this case is inevitable for the defendant to severely punish the defendant, taking into account the fact that the defendant snickly caused the victim’s death, resulting in extreme mental and physical pain, etc.

In this situation, the punishment shall be determined by comprehensively taking into account the following factors: (a) the Defendant was a juvenile under 18 years of age who has no previous conviction; (b) the Defendant resulted in the instant crime in a state of mental disorder in a state of mental disorder; (c) the Defendant’s age, character and conduct, environment, relationship with the victim; (d) motive, circumstance, means and consequence of the crime; and (e) various sentencing conditions specified in arguments

Judgment on the request for attachment order

1. Summary of request;

A person subject to a request for attachment order has committed murder as stated in the judgment, and is highly likely to again commit violent crimes such as murder.

2. Determination

Article 5 (3) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, “risk of recommitting a homicide” means that there is a lack of possibility of recommitting a crime. The risk of recommitting a homicide of a murder crime means that there is a considerable probability that the person subject to an order to attach an electronic device would destroy legal peace by committing a homicide again in the future. The existence of the risk of recommitting a murder crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to an order to attach an electronic device, the conduct, motive, means of the crime before and after the crime, the circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment, since it is a constructive judgment on the future (see, e.g., Supreme Court Decision 2012Do2289, 2012Do52, May 10, 2012)

Meanwhile, under Article 13(1) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders, an order to attach an electronic device is executed on the date the execution of a medical treatment and custody is terminated or terminated; medical treatment and custody is designed to prevent recidivism and promote rehabilitation into society by providing appropriate protection and medical treatment for those who have committed a crime in the state of mental or physical disorder and are deemed to require special education, improvement and medical treatment; and considering the circumstances that are terminated when the medical treatment and custody is not necessary within the scope of confinement prescribed in the Medical Treatment and Custody Act, the court, separate from the risk of recidivism as the requirements for the medical treatment and custody, should consider whether the risk of recidivism is recognized as the requirements for the order to attach an electronic device, notwithstanding the progress of medical treatment and custody. Comprehensively taking into account the following circumstances, it is difficult for the prosecutor to readily conclude that the person subject to a request to attach an electronic device has the same type and degree as the requirements for the medical treatment and custody, place and surrounding environment, etc. of the person subject to the request to attach an electronic device, and further consider the risk of recidivism in the first instance.

3. Conclusion

Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

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