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(영문) 대구지방법원 2015.04.10 2014노2167
폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, for two years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below that found the defendant guilty without assaulting the victims, causing injury, and threatening the victims by using dangerous articles is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The sentence of one year of imprisonment, two years of suspended execution, and 80 hours of community service, imposed by the lower court, is too unreasonable.

2. Determination:

A. Before determining the grounds for appeal by the defendant ex officio, the facts charged of violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) among the facts charged in the instant case are established for each victim, respectively. Each crime of violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) is committed against the victims at the same time at the same place, and shall be assessed as one act in light of social norms. Thus, it is reasonable to view that each crime of violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) is in a commercial concurrent relationship.

However, the judgment of the court below omitted the application of Articles 40 and 50 of the Criminal Act concerning commercial concurrence in the applicable provisions of law. In this regard, the court below erred by misapprehending the legal principles on the number of crimes, which affected the conclusion of the judgment, and the judgment of the court below cannot be maintained

However, despite the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, and is judged below.

B. The following circumstances acknowledged by the evidence duly adopted and examined by the court below regarding the assertion of mistake of facts: ① the witness G and D of the court below clearly testified from the defendant that they suffered damage as stated in the court below's decision, and there are no special circumstances to suspect the credibility of the above witness's statement, ② the victim's statement is not consistent, and the defendant is not consistent.

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