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Main Issues
Article 288 of the Criminal Code provides the degree of violence or intimidation in the act of kidnapping
Summary of Judgment
An act of kidnapping stipulated in Article 288 of the Criminal Code refers to an act of moving a victim from a free living relationship or protection relationship against his/her will to a criminal or a third party under de facto control, and in cases of using it as a means of assault or intimidation, the degree of assault or intimidation is sufficient to the extent that it can be placed under the real control of the other party, and it does not necessarily require to be sufficient to suppress the other party’s resistance.
[Reference Provisions]
Article 288 of the Criminal Act
Escopics
Defendant
upper and high-ranking persons
Defendant
Defense Counsel
Attorney Kang Han-chul
Judgment of the lower court
Seoul High Court Decision 89No2449 delivered on November 16, 1989
Text
The appeal is dismissed.
The number of detention days after an appeal shall be included in the calculation of the original sentence.
Reasons
The defendant and his defense counsel's grounds of appeal are examined.
Upon examining the evidence of the court below in light of the records, there is no error of law that misleads the facts against the rules of evidence, such as the theory of litigation, in the process of determining the facts.
In addition, the act of kidnapping stipulated in Article 288 of the Criminal Code refers to the act of moving the victim to a criminal or a third party under the control of the criminal or a third party against his/her will, and in cases of using it as a means of assault or intimidation, the degree of assault or intimidation is sufficient if the other party can be placed under the real control, and it does not necessarily require that the degree of suppressing the other party's resistance would be sufficient. Therefore, there is no error in the misapprehension of the legal principle of kidnapping on the ground that the defendant's act does not constitute a degree of suppressing the victim's resistance.
Therefore, the appeal shall be dismissed, and twenty days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)