(영문) 서울고등법원 2021.01.14 2020노1787 | 리걸엔진

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울고등법원 2021.01.14 2020노1787

살인미수

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence imposed by the lower court (unfair sentencing) on the Defendant (two years of imprisonment) is too unreasonable.

B. A prosecutor 1) In full view of the deadly weapons used by the Defendant as a misunderstanding of the facts, the part of the attack, and the circumstances before and after the crime of this case, the court below acquitted the Defendant of the attempted murder (grounded) even though it was sufficiently recognized that the Defendant had attempted to kill the victim at the time of the crime of this case.

2) The sentence sentenced by the lower court to the Defendant is too unhued and unreasonable.

2. Determination as to the prosecutor's assertion of mistake of facts

A. In the intention to commit murder in the relevant legal doctrine, the intention includes recognizing or forecasting the possibility or risk of causing death to another person, and the perception or predictability of the intention is recognized as willful negligence even if it becomes uncertain.

In addition, whether the Defendant had committed murder at the time of committing the crime ought to be determined by comprehensively taking account of the objective circumstances before and after committing the crime, such as the background leading up to the commission of the crime, motive for the crime, existence and type of the prepared deadly weapon, use of the weapon, the nature and repetition of the attack, and the possibility of the occurrence of the death (see, e.g., Supreme Court Decisions 2006Do734, Apr. 14, 2006; 2017Do19501, Jan. 25, 2018). (B) The lower court and the evidence duly adopted and investigated by this court, solely based on the evidence submitted by the prosecutor, intended to kill the victim at the time of committing the instant crime.

There is insufficient evidence to acknowledge it, and there is no other evidence to acknowledge it.

Therefore, the court below was justified in finding the Defendant not guilty of attempted murder.

1) The circumstances leading to the instant crime and the motive for the Defendant to murder the victim.

It is difficult to see it.

The Defendant is drunk even before the instant case.

참조판례

-(변경)대법원 2006. 4. 14. 선고 2006도734 판결

유사 판례

-대법원 2018.01.25 2017도19501

-대구고등법원 2020.05.20 2020노77

-대구고등법원 2020.01.08 2019노455

-대구고등법원 2019.01.23 2018노384

-서울고등법원 2020.09.10 2020노1065