2016No2689 Injury

head (5 - 1), commerce

Gwangju Northern-gu

Gwangju Dong-gu in the original domicile

Defendant

Maximum (Public Prosecutions) and YI (Public Trial)

Attorney Kim Kim-○

Gwangju District Court Decision 2016Gohap532 Decided July 14, 2016

July 4, 2017

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of innocence against the defendant shall be published.

1. Summary of grounds for appeal;

Although the defendant has set the arms of the victim, the victim did not have been injured thereby. Even if the victim suffered the bodily injury by the defendant's act, the above act by the defendant is aimed at preventing the victim from unfairly refusing access by the members of the victim and exercising the force of force. Thus, it does not constitute a crime of self-defense or self-help.

2. Determination:

A. Summary of the facts charged

The defendant and the victim are in conflict with each other as the members of the Seo-gu in Gwangju-gu***** the way in which they are in conflict with each other in ideology and money.

On January 22, 2016: around 40, the Defendant, at the entrance of the aftermath of the immediately preceding church, set up a salt farm, etc. requiring approximately two weeks medical treatment for the above victim, such as cutting down the arms and sprinking the flab, spinginging the flab, etc., in the process of opposing and opposing the installation of a set.

B. The judgment of the court below

The lower court determined that the Defendant’s act did not constitute a “self-help” or “self-defense” on the ground that the Defendant’s act did not constitute a “self-defense” or “self-defense” on the grounds that the Defendant’s act does not fall under a considerable act to avoid the impossibility or significant difficulty of executing the Defendant’s towing activities, etc., and that the Defendant

C. Judgment of the court below

First of all, we examine whether the defendant's act causes injury to the victim, and whether the defendant intentionally commits such act.

원심이 적법하게 채택하여 조사한 증거들에 의하면, 당시 피고인이 김♧♧과 싸우고 있던 피해자의 팔을 잡아당겨 끌고 나옴으로써 김BB과 피해자를 떨어뜨려 놓자 피해자가 피고인의 멱살을 잡았고 이에 피고인도 피해자의 멱살을 잡은 사실이 인정되기는 한다 .

However, the above evidence and in particular, it is part of the evidence produced by the prosecutor's evidence No. 10 produced by the defendant as evidence No. 1. The defendant, while investigating the evidence No. 10 submitted by the court below, alleged that the evidence No. 1 which was recorded in the back part of the evidence was not an examination of evidence, and that the evidence No. 1 which was recorded in the evidence No. 1 which was newly examined by the court below was again examined by the court below.

In light of the following circumstances, it is insufficient to recognize that the above act of the defendant committed an injury as stated in the facts charged by the victim, and that the defendant intentionally committed such act, and there is no other evidence to acknowledge it.

① 피고인과 피해자가 실랑이하는 모습이 촬영된 영상에 의하면, 피고인은 당시 피해자를 말리고 김♧♧로부터 떨어뜨려 놓으려는 의도에서 피해자의 팔을 잡아당겼고 이를 거부하는 피해자와 서로 반대 방향으로 힘을 주는 과정에서 두 사람이 함께 조금씩 조금씩 화면상의 좌측 편으로 이동하였으며, 이후 피해자가 피고인의 멱살을 잡으면서 피고인을 흔들자 피고인도 이에 대항하여 피해자의 멱살을 잡았으나 멱살을 잡은 상태에서 피해자를 흔들어 당기거나 밀치지는 않았다 .

As above, even though the Defendant used the victim’s arms at the time, the act was not done with strong power, but was merely done with flabing, and did not exercise any additional tangible power. In light of the above circumstances, it is difficult to deem that the Defendant exercised the force against the victim to the extent that the Defendant exercised the physical force equivalent to the facts charged, and it is difficult to see that the Defendant committed such act with the intent to inflict such injury on the victim.

② In light of the fact that a written diagnosis of injury to a victim, who conforms to the facts charged, appears to have been prepared based only on the victim’s statement and appeal for pain without any objective grounds, such as radiation photographing, even according to its content, and as seen earlier, the Defendant and the victim’s situation that is unreasonable in the process of the victim’s movement does not change, it cannot be readily concluded that the victim suffered injury as a defendant’s act on the sole basis of the written diagnosis of injury as mentioned above (see Supreme Court Decision 2016Do15018, Nov. 25, 2016).

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

[Reasons for the Judgment] The summary of the facts charged in this case is the same as that of the above Paragraph 2-A, which constitutes a case where there is no proof of a crime for the same reason as seen in Paragraph 2-C of the above Article, and thus, a not-guilty verdict pursuant to the latter part of Article 325 of the Criminal Procedure Act and a public notice of the summary of the judgment of the defendant pursuant to Article 58(2) of the Criminal Act

Judges Kim Young-sik

Judge Lee Jin

Judges Park Dong-chul