Whether keeping one prosecutor's office in the defendant's house constitutes "Carrying" of dangerous articles as referred to in Article 7 of the former Punishment of Violences, etc. Act (amended by Act No. 4294) (negative)

The term "Carrying of dangerous objects" under Article 7 of the former Punishment of Violences, etc. Act (amended by Act No. 4294) refers to carrying the dangerous objects under the intention to use them at the scene of the crime at the scene of the crime, and therefore, the custody of one prosecutor at the home of the defendant cannot be deemed as carrying the dangerous objects under the above Act.

Article 7 of the former Punishment of Violences, etc. Act (amended by Act No. 4294 of Dec. 31, 1990)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Defendant 1 and two others

Defendants

Attorney Shin Shin-chul

Seoul High Court Decision 90No3373 delivered on January 18, 1991

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court.

Defendant 1 and 3 appeals are dismissed, and 70 days of detention days after the appeal shall be included in the principal sentence against the same Defendants.

We examine the grounds of appeal.

Defendant 1’s grounds of appeal and Defendant’s grounds of appeal against the same Defendant

Examining the record, the fact-finding by the court below is acceptable and it cannot be said that there is a violation of the rules of evidence.

In addition, considering the overall circumstances that form the conditions for sentencing through the records, the sentencing of the court below against the same defendant cannot be deemed as a case where there is a significant reason to recognize that the sentencing of the same defendant is extremely unfair. Therefore, there is no reason to discuss it.

As to the ground of appeal by a public defender against Defendant 2

According to the reasoning of the judgment of the court below, the court below accepted the criminal facts in the judgment of the court of first instance, and recognized that the defendant 2 kept one of the body of the defendant, which is a deadly weapon that might be used to kill people, from January 1, 1990 to April 15 of the same year, and applied Article 7 of the Punishment of Violences, etc. Act prior to the amendment by Act No. 4294.

However, the carrying of a dangerous object as referred to in Article 7 of the above Act refers to carrying a dangerous object under the intent to use at the scene of the crime in the body or body near the body. Thus, the defendant's custody of one of the above autopsy at the defendant's house alone cannot be deemed as carrying a dangerous object under the above Act (see Supreme Court Decision 90Do2170 delivered on Nov. 13, 1990).

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to "Carrying" of dangerous articles as stipulated in Article 7 of the above Act, and the issue of points out is with merit.

Defendant 3’s grounds of appeal and Defendant’s grounds of appeal on the same Defendant

In light of the judgment of the court below and the records of the court of first instance cited by the court below, there is no violation of the rules of evidence in the fact-finding of the defendant.

Examining the record, the above defendants who are in the same defendant's accomplice relation are all criminal facts in the first instance court, and the defendant 3 does not seem to have denied the facts of conspiracy.

또한 이 사건 기록의 증거목록에 의하면 피고인들은 원심이 인용한 제1심판결 적시의 증거들을 모두 증거로 함에 동의한 바 있는바, 피고인 1은 검찰에서 피고인들이 특수강도의 피해자인 성명미상의 남자에게 돈을 내어 놓으라고 위협하였고, 상해의 피해자 1에게 욕을 하고 행패를 부린 것은사실이라고 진술한 것으로 기재되어 있고(수사기록 344, 346면), 피고인 2는 피고인 3이 위 성명미상의 남자를 발로 1회 걷어 찼다고 진술한 것으로 되어 있고(수사기록 390면), 피고인 3도 위 성명미상의 남자를 발로 1회 걷어찬 사실을 시인한 바 있는바, 이들 증거와 사법경찰리작성의 피해자 1에 대한 진술조서 등 제1심판결이 들고 있는 증거들을 합하여 보면 피고인 3에 대한 범좌사실을 인정할 수 있다는 원심의 사실인정은 수긍할 수 있는 것이고, 피고인 3이 특수강도의 피해자로부터 직접 돈을 빼앗은 것은 아니고, 피해자 1이 입은 상해의 직접원인이 된 폭행을 가한 것은 아니었다고 하여 그에게 공범으로서의 책임이 없다고 할 수는 없다. 따라서 논지는 이유가 없다.

Therefore, without examining Defendant 2’s grounds of appeal, the part on Defendant 2 among the judgment below regarding the case is reversed and remanded to the court below. Defendant 1 and 3’s appeal is dismissed. Defendant 1 and 3 are to include part of the number of detention days after the appeal in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-chul (Presiding Justice)