2015 Gohap43,50 (Joint) homicide and violation of the Road Traffic Act (Unlicensed Driving)

A

Southern-type (prosecutions, public trials), new lines, and strict cases (public trials)

Attorney B

July 3, 2015

1. Defendant shall be punished by a fine of KRW 300,00. 2. Of the facts charged in the instant case, the summary of the judgment of innocence against Defendant on March 3, 200

Criminal facts

“2015, 50

On February 19, 2015, the Defendant driven approximately 200 meters of CITY100 Obaba, from the front of the office of Pyeongtaek 1 Dong to the front road of the same Kudong apartment located in the same Dong, after having obtained a driver's license on the last 19:0 in the middle of February 2015.

Summary of Evidence

1. Defendant's legal statement;

1. Each police suspect interrogation protocol of D or E;

1. A written statement;

1. Records of seizure and photographs of seized articles;

1. Application of the statutes governing the register of two-wheeled motor vehicles;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 154 subparagraph 2 of the Road Traffic Act, Article 43 and the main sentence of Article 80 (1) of the Road Traffic Act (the point of driving without a license, the selection of fines)

1. Reasons for sentencing: Fines not exceeding 300,000 won;

2. Recommendation type on the sentencing criteria: Not applying.

3. Sentence: Fines of 300,000 won;

4. Grounds for sentencing;

Although the Defendant did not obtain a driver’s license, the Defendant, even though having knowledge of the fact that he has stolen another person, is not good to commit such crime. Considering such circumstances, the Defendant’s age, character and behavior, and circumstances, the sentence against the Defendant shall be determined as a fine of KRW 300,000,000, considering all of the Defendant’s age, character and behavior, etc. Furthermore, as the Defendant is a juvenile of 15 years of age, the Defendant is not sentenced to the detention in a workhouse under Article 70 of the Criminal Act pursuant to

The acquittal portion

1. Summary of the facts charged

The Defendant is a high school student in the first grade of G High School. The Defendant and the victim H (the age of 17) were siblingsed, and the Defendant was frequently involved in assaulting the Defendant due to drinking and abrupting on the ground that from around the 5-6th grade of the elementary school, the Defendant refused to do so from the victim's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's' or 's 's 's 's 's 's 's 's 's 's 's 's ''

피고인은 2015. 4. 1. 01:35경 춘천시 1 2층 방에 누워 휴대폰으로 만화를 보고 있었는데, 그 무렵 피해자가 술에 취해 귀가하였고 피해자는 아무런 이유 없이 피고인의 배를 밟은 다음 피고인에게 '담배와 술을 어디에서 사느냐', '이제부터 형이 어디든지 때릴 테니까 알아서 잘 막아라'라고 윽박지르면서 주먹으로 피고인의 옆구리 등을 수회 때렸다. 이에 대항하여 피고인이 피해자를 밀치자, 피해자가 피고인에게 '이 새끼 미쳤나, 너 오늘 나한테 맞아 뒤지는 거야'라고 욕설을 하였고, 피고인도 화가 나 피해자에게 '니 좆대로 하세요. 이 개새끼야'라고 욕설하였다. 그러자, 피해자가 피고인의 머리, 목 부위를 팔로 감아 조르기 시작했고, 피고인은 숨이 막혀 살려 달라고 소리쳤다. 이때 옆방에서 잠을 자던 피고인의 부모가 싸우는 소리를 듣고 피고인의 방으로와 피고인과 피해자를 떼어 놓았고 피고인의 부 J과 피해자가 다투다가 위 J이 피해자를 위에서 누르면서 제지하였다.

Around 02:00 on April 1, 2015, the Defendant: (a) laid the part of the victim’s right chest in a knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife, and caused the victim to die from a low blood transfusion shock.

As such, the Defendant killed the victim.

2. Claims by the defendant and prosecutor;

A. Prosecutor's assertion

The Defendant opened a singke receipt and cut the knife knife knife knife knife in order to have the deceased knife under the suppression of the violence of the deceased by her, and knife the knife knife of the knife, so far as the knife part of the knife knife was force once. In light of this, the Defendant

B. Defendant’s assertion

The defendant reported the deceased's exercise of violence against his father and the defendant, and caused violence to the deceased even if it were to be avoided, and as stated in the father's opinion, the defendant did not have been able to cause the deceased to die so far. In light of this, the defendant was unable to anticipate the death of the deceased, and there was no intention to allow the death of the deceased, so the defendant is not allowed to commit murder.

3. Determination

A. The subjective element of the constituent element of a crime, which is the case where the possibility of occurrence of the crime is uncertain and thus, it is acceptable. The possibility of occurrence of the crime is recognized as well as the intent to deliberate on the risk of occurrence of the crime in order to have dolusent intent. Whether the actor has accepted the possibility of occurrence of the crime must be determined by considering how the general public can assess the possibility of occurrence of the crime in light of the specific circumstances, such as the form of the act performed outside, and the situation of the act performed, not dependent on the statement of the offender (see, e.g., Supreme Court Decisions 2004Do74, May 14, 2004; 2006Do8418, Apr. 27, 2007).

B. According to the evidence duly adopted and examined by this court, the following facts are acknowledged.

1) Case history

A) On the day of the instant case, at around 01:35, the Defendant was assaulted by H (hereinafter referred to as “the deceased”) who entered into the breath in alcohol, as indicated in the facts charged, and was sent by the deceased to stroke by the deceased. The Defendant’s external invasion was strokeed by the Defendant and the deceased’s J (hereinafter referred to as “her father-child”) and his mother were removed from the Defendant and the Deceased, and the she was removed from the Defendant and the Deceased, and the she was 4-5 times frighted by the Deceased. The victim was left out of the room.

B) In fighting with the deceased’s body, a kel kel and kel, the deceased was kneed, and then the deceased was knicked in a position opposite to the deceased’s body with both descendants, and the deceased’s body led the deceased to the form of playing his part, such as the deceased’s body. The deceased resisted the deceased’s body.

C) When the Defendant went out of the room and went out of the kitchen, the Defendant opened a kitchen beer door, and cut the knife knife knife knife knife knife and knife knife knife knife knife, and the knife knife knife knife knife knife. At the time the Defendant went into the room, the Defendant knife knife knife knife knife knifs of the deceased. The Defendant knife knife knife knife knif on the part of the Deceased.

D) The Defendant cut the Deceased’s knife in knife, 4 and 5, and the verted part of the body where the heart is located, and cut the Defendant’s knife’s knife into the chest space where the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife part of the

E) The Defendant, knife, knife, knife the deceased, cut the knife while being shocked out of the room, and the knife knife was knife into the knife knife by cutting the knife from the Defendant. The Defendant, knife, knife, knife and knife his face, was committed.

F) The Deceased died due to the sacrificing of the foregoing subsection (d).

(ii) medical opinions

K of the legal clinic who is the autopsy of the deceased appeared as a witness in this court and expressed the following opinions.

A) As a result of the deceased’s autopsy, the deceased appears to have been dead by cutting off the knife, knife, knife, knife, knife, with the Defendant’s knife’s knife.

B) As above, the skin verted vertlle is very weak, unlike the bones of ordinary parts, and the country’s air system can easily set it, and the space between the verted verte and the verte is more deep as the knife knife knife enters the space without the flacke or the bones, and the knife knife knife flife flife flife flife flife flife flife flife flife flife flife flife flife flife. Therefore, it seems that the Defendant’s knife flife flife flife flife flife entered due to the characteristics of the part of the body.

3) Defendant’s statement

As consistent from the police investigation stage to the trial of this case, the Defendant stated that he did not think of murder of the Deceased, but did not think that he could prevent violence of the Deceased, and did not think that he could die when he knife the Deceased with a knife.

The evidence submitted by the prosecutor alone is insufficient to recognize that the defendant had had dolusence on the murder of the deceased at the time of the death with a knife, and there is no other evidence to acknowledge it. The reasons are as follows.

1) At the time when the Defendant fell away from the deceased and went out of the room, it seems that the Defendant was in the state of drinking 4 to 5 times the Deceased’s violence rather than the state of pressured by the Deceased’s violence. In such a situation, the Defendant, solely on the ground that he would restrain the Deceased’s violence, opened a space for receiving scambling in the extreme stage and deducted the knife attached at that place, and again, knife the Deceased came into the knife.

2) At the time when the defendant knife was keled and re-entered into the room, the deceased was knifeed with kne kne, and the her knife was covered by the deceased's body with his knife, and led the deceased to devise by his knife with his knife. In this situation, the defendant seems to have knife the body of the deceased's body outside the body of the knife deceased's body. If the situation is that the defendant was knife with the chest part of the deceased's chest to knife, not with the defendant's chest part to knife the deceased's body, but without a proper understanding of what body part of the deceased's body part of the deceased's body, it is judged that the knife became a knife.

Therefore, the prosecutor's argument that the defendant recognized the deceased's rank and recognized that the defendant had an intention to allow the death of the deceased at least on the premise that the deceased has reached a knife is not recognized from the premise.

3) It is also consistent with the opinion of the legal officer K to the effect that the defendant's knife knife that the knife has come into knife by ordinary force, rather than the body of the deceased, and eventually led to the knife of the body, the defendant's testimony is also consistent with the decision that the defendant's knife knife with the deceased's knife will prevent violence in the state of extreme interest, and that the defendant's knife would not unfold the deceased's knife the deceased's knife with his knife with his will to allow the death.

4) The Defendant showed a critical appearance, such as cutting the Deceased out of the room after knifeing the Deceased with knife, cutting out, or taking one’s face. This also accords with the fact that the Defendant was unable to anticipate the Deceased’s death, or that at least there was no intention to allow the Deceased’s death.

4. Conclusion

As seen earlier, it is difficult to view that the evidence submitted by the prosecutor alone is insufficient to prove without any reasonable doubt that the defendant predicted the death of the deceased at the time when the defendant became knife as stated in the facts charged, and that there was an intention to allow the death, i.e., doluence, and there is no other evidence to acknowledge it.

Furthermore, the prosecutor did not make a preparatory indictment against the defendant for the crime of bodily injury or modification of indictment for the crime of bodily injury, and there was no trial for the crime of bodily injury during the participatory trial of this case. Thus, the elements of the crime of bodily injury or bodily injury cannot be deemed to include the fact of bodily injury without the modification of indictment. Thus, the recognition of the crime of bodily injury without the modification of indictment gives disadvantages to the defendant's right to defense against the crime of bodily injury or bodily injury (see, e.g., Supreme Court Decision 2001Do1091, Jun. 29, 2001). (In addition, the court's recognition of the crime of bodily injury without the prosecutor's examination for the crime of bodily injury or bodily injury would result in a substantial infringement of the defendant's right to a trial as a participatory trial of the facts charged of this case, and thus, the part concerning the crime of bodily injury among the facts charged of this case constitutes a case where there is no proof of criminal fact, thereby not guilty under the latter part of Article 325 of the Criminal Procedure Act, and publicly announce the summary of acquittal under Article 58 (2).

Opinions on jury verdict and sentencing

1. Do verdict;

In the case of murder: Violation of the Road Traffic Act (Non-licensed driving) by not guilty (only in a lump sum, and the reason for innocence: Not recognized as willful negligence of murder): guilty (only in a case)

2. Sentencing opinion: Fine of 300,000 won.

3. 1) The major issues of the participatory trial in this case are whether the progress of the participatory trial in this case is whether the defendant's intention to murder is recognized or not. The participatory trial in this case is conducted in the order of all the procedures (in the case of jury's oath, explanation of the presiding judge's right to refuse to make statements, notice of the right to refuse to make statements and recognized questions, all of the prosecutor's statements, statement of the defendant and counsel, mediation of the issues of the presiding judge), fact-finding procedures (examination of evidence, examination of witness, reading of the judgment before the judgment of the defendant, reading of the presiding judge, the explanation of the presiding judge (a summary of dispute mediation, method of determining credibility and degree of proof, and the procedure of deliberation, verdict and sentencing) through legitimate procedures in accordance with the Criminal Procedure Act and the Act on Citizen Participation in Criminal Trials (hereinafter "Act on Citizen Participation in Criminal Trials").

In particular, the definitions, examples, and cases of both the prosecutor and the defense counsel have been clearly and correctly explained through the whole explanation, the organization of issues, and the summary of the issues of the presiding judge with respect to the criminal intent which became the major issues and the willful negligence among them.

2) Based on the reasoning of the verdict, the jury rendered a verdict of innocence and issued a verdict of conviction as to the violation of the Road Traffic Act (unlicensed driving) on the ground that the jury did not have any negligence with respect to murder by unanimous negligence through deliberation.

The reasons for the verdict submitted by jurors to the full bench are as follows (Article 49(1) of the National Participation Trial Act).

① In the event the Defendant was absent from room, it seems that the Defendant had a knife in order to prevent the Defendant from harming the Defendant’s appearance because the Defendant had a knife because of the fact that the Defendant had a knife to the victim’s use of violence. On the contrary, it is difficult to deem that the Defendant was completely suppressingd by the knife by the knife when the Defendant was absent from room, and the violence of the victim was terminated. In light of the Defendant’s knife at the most easily inside and outside of the knife of the knife, knife the knife at the place where the knife might easily take the knife by the kitchen in an urgent situation where it is necessary to suppress violence of the victim as above, it is difficult to deem that the kitchen part of the kitchen was taken to kill the victim.

③ It is true that the Defendant was a frighter for the victim, but the Defendant was unable to accurately recognize the part of the victim at the time of the Defendant’s knife, or at least he was aware of the fact that the Defendant was frighted with the knife at least a knife at the time of the Defendant’s knife. In other words, when the Defendant was knife with the knife, the Defendant cannot be found guilty of murder. In other words, when the Defendant was knife with the knife, the victim was frightd with the knife and knife, and the victim was frightd with the body of the victim. In light of the fact that the Defendant was frighted with the knife of the victim, the Defendant appears to have knife the knife with the knife in the above situation, and the Defendant did not appear to have committed the knife or the knife.

④ In light of the fact that the Defendant’s knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife unfoldsnife knife knife knife knife knife knife knife knife unknife knife,

⑤ In light of this point, the prosecutor’s proof alone, separate from the recognition of the death resulting from bodily injury (the intention of injury is recognized), cannot be deemed that the Defendant’s willful negligence of murder is recognized without any reasonable doubt (the jury clearly stated that the Defendant was not guilty of murder, by sparing the same mind).

3) In criminal proceedings conducted in the form of a participatory trial conducted in order to enhance the democratic legitimacy and trust of the evaluation and justice on the grounds of a verdict, collective opinions presented to the full bench on the recognition of facts by a juror composed of citizens, through strict selection procedures, have the effect of recommending a judge of the fact-finding court who has the full power over the preparation of evidence and fact-finding under the principle of substantial direct examination and the principle of court-oriented trials. The verdict of innocence issued by the full bench as to the preparation of evidence, such as the credibility of a witness’s statement, and the recognition of facts, should be respected unless the grounds and results of the verdict are clearly erroneous or considerably unfair.

The reasoning for the jury's verdict is generally consistent with the reasoning for the judgment of the full bench as seen earlier, and the results of the verdict are issued by only nine jurors, and it cannot be deemed that it is clearly erroneous or remarkably unfair.

It is so decided as per Disposition for the above reasons.

The presiding judge, judge and Mapo-young

Judges Domincs

Judge Lee Jin-han