[1] The case affirming the judgment of the court below which acquitted the defendant of the facts charged of the crime of assault since it is difficult to recognize the causal relationship between the defendant's assault and the death of the victim, and it is difficult to view that the defendant could have predicted the result of the victim'

[2] In a case where the victim died without expressing any intention about the punishment of the defendant, whether the right of expression of intention is succeeded to the bereaved family such as the spouse, etc. (negative)

[3] The case reversing the judgment of the court below which dismissed the prosecution on the ground that the same child of the deceased who was admitted only as the part of the charges of assault resulting in the death had expressed an intention not to punish the victim

[1] The case affirming the judgment of the court below which acquitted the defendant of the charge of the death of assault since it is difficult to recognize the causal relationship between the defendant's assault and the death of the victim, and it is difficult to view that the defendant could have predicted the result of the victim's death

[2] In the case of the crime of non-compliance with the intention of a victim, in the case where the victim died without expressing any intention about the punishment of the defendant, the right of expression of such intention shall not be succeeded to the bereaved family such as

[3] The case reversing the judgment of the court below which dismissed the prosecution on the ground that the same child of the deceased who was admitted only as the part of the charges of assault resulting in the death had expressed an intention not to punish him/her and remanded

[1] Articles 17 and 262 of the Criminal Act / [2] Article 260 (1) and (3) of the Criminal Act / [3] Articles 260 (1) and (3), 262 of the Criminal Act, Article 327 subparagraph 6 and Article 366 of the Criminal Procedure Act

Defendant

Prosecutor

Jink

Attorney Kim Young-chul

Suwon District Court Decision 2005Gohap111 decided August 10, 2005

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Sungnam Branch.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles concerning the crime of assault death

As a result of the examination on the victim's right side of the victim, there is a hole on the victim's right side side, and the victim's right side side and the side side side of the victim's body is holeed, and the blood species occurred by external force three to four days prior to the victim's death and there is a possibility of death due to the high degree of death. Therefore, the victim's death due to the victim's violence and the victim's death caused the victim's death. In addition, the causal relationship between the defendant's violence and the death can be acknowledged as the victim's death. In addition, even though it is not possible to recognize the causal relationship between the defendant's violence and the death on the basis of the defendant's statement without credibility, even if it is not so, the court below erred in the misapprehension of facts, or in the misapprehension of legal principles as to the possibility of the crime of death by misunderstanding the facts at the time of the defendant's assault or by misunderstanding the legal principles as to the possibility of the crime of death.

B. Legal principles as to the crime of non-compliance with an intention

Even if it is difficult to recognize the causal relationship between the defendant's assault and the victim's death, if the victim dies without expressing his/her intention, the right to express his/her intention shall not be succeeded to his/her bereaved family, and even if his/her bereaved family members are not subject to punishment after the victim's death, it cannot be dismissed. However, the court below dismissed the public prosecution against the crime of assault on the ground that the victim's birth expressed his/her intent not to have the defendant punished on behalf of the bereaved family members, thereby affecting the conclusion of the judgment by misunderstanding the legal principles as to the intention not to have the defendant punished

2. Determination on the grounds for appeal

A. As to the mistake of facts or misapprehension of legal principle as to the crime of assault death

(1) Summary of the facts charged

The summary of the facts charged of this case is that the defendant continued to live together with the victim non-indicted 1 (Taking 46 years of age) who worked as a policeman on January 2005 as his main employee, from around May 28, 2005, and was living together with the victim's house "(trade name omitted)" located in the Sungnam-gu, Sungnam-gu, Seoul Special Metropolitan City (hereinafter referred to as the "detailed address omitted) for a long time on June 9, 2005, while living together with the victim at the (203) room on the ground that the victim 203 room on the ground that the time of the new wall cannot be seen as her head and her head were pushed off one time to prevent his death, and the victim does not have the victim's her head and her head from drinking at the same place on the ground that he does not have the victim's her head and does not have the victim her her bright and her bright at the same time on June 20, 2005.

(2) The judgment of the court below

In full view of the Defendant’s statement at an investigative agency and the lower court’s testimony, autopsy report, scambling photo, and each investigation report, the lower court determined that the Defendant had no other evidence of the victim’s body at the time of the victim’s death and no other evidence was found to have been found when the victim’s head was fright at one time on June 9, 2005, by taking into account the victim’s head at one time, and the victim’s head was frightened at one time on June 11, 2005. The lower court determined that there were no other evidence of the Defendant’s death and no other evidence of the victim’s body at one time on June 22, 2005 that it was difficult for the victim to see that the victim was frighten, and that there was no other evidence of the victim’s body at one time prior to the victim’s death and no other evidence of the victim’s body was found to have been found.

(3) Judgment of the court below

In light of the records, the court below is justified in finding the defendant not guilty of the crime of assault in this case on or around June 9, 2005 on the ground that it is difficult to view that the defendant committed assault against the victim, such as the victim's breath with his hand floor of the victim's breath on or around June 9, 2005 and then caused the victim's breath in the wall by saving the breath with breath in the breath of the victim's breath, once after the breath of the breath, and the victim's breath on the breath of the breath of the victim's breath of the breath, and there is no other evidence to acknowledge this differently, and there is no error of law by misunderstanding the legal principles on the possibility of the victim's first breath of the breath of the breath of the breath of the victim's breath of the victim's.

B. As to the misapprehension of legal principles as to the crime of non-compliance with will

(1) The judgment of the court below

The court below held that the facts charged of the crime of homicide are included in the facts charged of the crime of homicide, and the facts charged of the crime of homicide can be acknowledged ex officio without changing the indictment because it is not likely to actually disadvantage the defendant's exercise of his right of defense even if acknowledged. The crime of homicide is a crime falling under Article 260 (1) of the Criminal Act, which cannot be discussed against the victim's express intent under Article 260 (3) of the Criminal Act. According to the records, since the non-indicted 3, a partner of the victim, expressed his intention on behalf of the bereaved family members on July 20, 205 and did not want the defendant's punishment in this court, the court below dismissed the prosecution of this case pursuant to Article 327 subparagraph 5

(2) Judgment of the court below

However, it is difficult to accept the lower court’s dismissal of prosecution against the charges of assault on the grounds that Nonindicted 3, the dependent of the victim, agreed on behalf of the bereaved family members after the prosecution of this case, and furthermore, expressed his intention not to be punished by the defendant at the court of the lower court.

(A) The crime of assault is an offense falling under Article 260(1) of the Criminal Act, which cannot be prosecuted against the clearly expressed will of the victim under Article 260(3) of the same Act, and thus, an indictment may be instituted and tried under the condition for rescission of the clearly expressed will of the victim. However, in the case of the crime of the crime of the crime of the non-violation of an intention, the right of declaration of intention shall not be succeeded to the bereaved family such as the spouse, etc. in case the victim died without any declaration of intention concerning the punishment of the defendant.

(B) In light of the records, it is clear that the facts that the victim did not express any intent to punish the defendant against the assault committed by the defendant, and that the victim died without expressing any intent to punish the defendant. Thus, the court below's decision to dismiss the prosecution of the crime of assault of this case was erroneous in misunderstanding the legal principles as to the crime of assault of this case and the judgment to dismiss the prosecution of this case, thereby affecting the judgment, since the court below's decision to dismiss the prosecution of this case was erroneous in misunderstanding the legal principles as to the crime of assault of this case and the judgment to dismiss the prosecution of this case ( even if there was a right to express the intention not to punish the bereaved family of the victim, the deceased victim's spouse is alive (56 pages of investigation records and the trial record 45 pages), and it is difficult to conclude that the non-indicted 3, the South-North Korean victim of this case, can have a status to express his intention not to punish the defendant on behalf of the victim). The prosecutor's appeal pointing this out has merit.

3. Conclusion

Ultimately, the judgment of the court below that dismissed a public prosecution on the part of the charges of assault among the charges of this case is unlawful, and the whole judgment of the court below is reversed, and the case is remanded to the court of the court below in accordance with Article 36

Judges Ko Young-han (Presiding Judge)