(영문) 서울고등법원 2015.5.15. 선고 2015노762 판결

One hand knife seized (Evidence 2, 2114 No. 2, 2014 of the Incheon District Prosecutors' Office), one knife electric knife (No. 3), one knife (No. 4), one vinyl (No. 5 of the same proof), one knife (No. 6 of the same proof), one knife (No. 7 of the same proof), one knife (No. 8 of the same proof), one knife (No. 8 of the same proof) shall be confiscated, respectively.

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for 30 years.

Matters to be observed in the attached Form shall be imposed on the person requested to attach an attachment order.

Reasons

1. Summary of grounds for appeal;

(a) The defendant and the person to whom the attachment order is requested, and the person to whom the probation order is requested (hereinafter referred to as the "defendant");

(1) misunderstanding of facts

The Defendant did not know the victim at all, but did not kill or destroy or abandon the victim’s body, and did not use the victim’s credit card theft. A motor vehicle under the name of the Defendant was not driven for a long time, was not taken by CCTV, and was not taken by the Defendant. The name of the Defendant of the mobile phone and the hosting site was stolen.

2) Mental disorders

Even if the defendant committed a crime, it is a crime under the state of mental disability due to the mental division of the defendant.

3) Unreasonable sentencing

The imprisonment (30 years of imprisonment, confiscation) sentenced by the court below is too unreasonable.

(b) Prosecutors;

The above-mentioned sentence imposed by the court below on the defendant is too uneasible.

2. Determination of the accused case

A. Ex officio determination

Before the judgment on the grounds for appeal by the defendant and the prosecutor, the prosecutor applied for changes in the bill of amendment to the bill of amendment to the bill of amendment to the bill of amendment containing a part of the victim's body "as of May 29, 2014, around 23:56, the prosecutor applied for changes in the bill of amendment to the bill of amendment to the bill of amendment to the bill of amendment to the bill of amendment to the "as of May 30, 2014, the part of the facts charged for the abandonment of the bill of amendment to the bill of amendment to the bill of amendment to the "as of May 30, 2014, the part of the bill of amendment to the bill of amendment to the bill of amendment to the bill of amendment to the "as of May 23:56, 2014, the part of the bill of amendment to the bill of amendment

Therefore, the judgment of the court below has no longer been maintained. However, despite the above reasons for ex officio reversal, the defendant's misunderstanding of facts and the argument of mental disability is still subject to the judgment of this court, and this will be examined.

B. Judgment of mistake of mistake

In light of the reasoning of appeal as to this part of the judgment of the court below, the court below acknowledged detailed facts in item 2-A (a) of item 2-A of "the judgment of the defendant and his defense counsel's assertion" and rejected the defendant's assertion based on the circumstances as stated in its reasoning in item 2-c. 1 (i). We examine the above judgment of the court below in comparison with the evidence duly adopted and examined by the court below, the judgment of the court below is just, and therefore, the defendant's allegation in

C. Determination of mental suffering from mental illness

On the other hand, the court below rejected the above assertion in detail, on the grounds that the defendant asserted as the grounds for appeal in this part of the judgment below, and on the other hand, in item 2(c)(2) of the "Article 2-3(2) of the Judgment."

① After killing a victim, the Defendant purchased electric saws, fingers, travel bags, etc. necessary for the destruction and abandonment of the victim, colored places to abandon the corpse with smartphones on several occasions, putting the cut corpse into the above travel room by plastic sylloging, sprinking, sprinking, and other similar things, and tight and planned actions to treat the corpse by dumping it into the plant fluor, spons, and so forth. ② Mental appraisal prepared on July 22, 2014 by the Medical Treatment and Custody Board’s H and Custody RE and AR’s mental disorder test results on the following grounds: Ma-FAS test for detecting the mental disorder of the Defendant’s 16th diagnosis and diagnosis of the possibility of 16th diagnosis and treatment of the Defendant’s mental disorder; 2nd diagnosis and diagnosis of the possibility of 'psychological disorder’.

3. Judgment on the case of a request for attachment order and the case of a probation order

A. The lower court, upon declaring the conviction of the accused case, ordered the Defendant to attach an electronic tracking device for 30 years, and, at the same time, imposed a restriction on residential area, restriction on outing out of a certain time zone, and prohibition of access to the victim’s bereaved family members due to the following matters to be observed. When the accused filed an appeal against the accused case, it is deemed that an appeal has been filed against the case claiming an attachment order under Article 9(8) of the Act on Probation and Electronic Monitoring, Etc.

B. As to the claim for an attachment order, the judgment on the claim for an attachment order pursuant to Article 9(5) of the above Act shall be sentenced simultaneously with the judgment on the specific crime case, and the attachment order has the nature of an incidental procedure in which deliberation and judgment are conducted along with the premise of the specific crime case, in light of the criminal facts of the specific crime case and the facts constituting the case for a request for an attachment order, and it cannot be acknowledged differently (see Supreme Court Decision 2010Do1626, 2010Do3, Apr. 29, 2010). However, as seen earlier, as long as the case was modified, the part of the judgment below on the claim for an attachment order is reversed.

C. Meanwhile, in addition to the request for the attachment order, the court below dismissed the request for the probation order in addition to the request for the attachment order, and the court below dismissed the request on the ground that there is no benefit to separately apply for the probation order since the defendant is forced to be placed on probation during the period during which the attachment order is executed. However, in light of the applicable provisions of the indictment and the request for the attachment order, the prosecutor’s request for the attachment order is merely a preliminary claim against the case where the request for the attachment order is dismissed. The court below accepted the attachment order as requested by the prosecutor, and the same attachment order was cited in the trial, and thus,

4. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(2) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders without examining the grounds for ex officio reversal as seen earlier, and the judgment of the court below is reversed and it is again decided as follows.

Criminal facts, facts constituting the attachment order, and summary of evidence

The facts of the crime acknowledged by this court, the facts constituting the cause of the attachment order, and the summary of the evidence thereof are as stated in the corresponding column of the judgment below, except for the alteration of the part of the "a travel room containing a part of the victim's body from May 30, 2014, around 23:56, at around 649:56, around 15:0 to "a person abandons a travel room containing a part of the victim's body from May 30, 2014, at around 649:0 to 15:0,000, pursuant to Article 369 of the Criminal Procedure Act, and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders."

Application of Statutes

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

Article 250(1) of the Criminal Act (Murder, Selection of limited term), Article 161(1) of the Criminal Act (Aggravated Destruction and Damage), Article 161(1) (a) of the Criminal Act, Article 329 of the Criminal Act, Article 70(1)3 of the Specialized Credit Financial Business Act (Aggravated Punishment and Damage of Body), Article 70(1)3 of the Specialized Credit Financial Business Act (Aggravated Punishment and Selection of Use of Theft Credit Cards and Debit Cards), Article

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Concurrent Crimes of homicide with the largest punishment)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Reasons for sentencing under Articles 5(3), 9(1)1, and 9-2(1)1, 2-2 and 3 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

1. The scope of applicable sentences: Imprisonment for not less than five years nor more than 45 years;

2. Scope of recommendations;

(a) homicide;

▣ 살인범죄군 > 제2유형(보통 동기 살인)의 가중영역(징역 15년 이상, 무기 이상)

Determination on the types of clause

① Since the Defendant’s motive for committing a crime is unclear, it cannot be deemed to fall under Category 1 (Murder with Murder) or Category 3 (Murder with Unscopic homicide). ② It does not fall under Category 4 (combined homicide) because it does not constitute a combination of serious crimes, such as rape, and ③ it does not constitute a crime of murdering two or more persons to meet an unspecified number of persons or desire for murder, nor does it constitute a type 5 (Serious homicide).

- Therefore, the crime of murder of this case constitutes the crime of murder of this case of category 2 (the crime of murder of general motive: murder of general motive, which does not fall under Category 1, 3, 4, and 5).

Evaluation of Sentencing Persons

○ Special Convicts

- The cruel type of crime [the crime of murder of this case is the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife)

-damage and destruction of the body, using an electric saw, cutting the upper part of the body of the victim by cutting the upper part of each wide bridge;

○ General Convicts

-exploitation of the body of the victim (to put the body of the victim into a bags for travel, thrown away it into a hulled rice hushes in the area of the Corporation located in Namdong-gu Incheon, and thrown the body a half of the victim's body into a farm waterway in the S

Determination of the area of recommendation on clause: Determination of sentencing factors are significant as a result of evaluation of sentencing factors, so that the area of aggravation of category 2 (at least 15 years of imprisonment, at least 15 years of life) is more

(b) Theft;

▣ 절도범죄군 > 1. 일반재산에 대한 절도 〉 제2유형(일반절도)의 기본영역(징역 6월 ~ 1년 6월)

Determination on the types of clause

- The sentencing guidelines for larceny crime set up individual types after dividing the thief group into 1.0 th. th. th. th. th., 2. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th

- The thief of this case does not constitute category 1 (thief) inasmuch as it is difficult to view that the stolen of this case correspond to the neglected objects, etc. in terms of danger to the body, value of property, infringement of possession or exclusion, and thus, it does not constitute category 3 (thief) inasmuch as the stolen of this case does not fall under category 4 (thief) inasmuch as it does not fall under category 1 (thief) inasmuch as it does not fall under the category 3 (thief) inasmuch as it does not fall under the category 4 (thief) inasmuch as it does not fall under the category of

- The thief of this case constitutes Category 2 (General thief: thief not falling under Category 1, 3, and 4)

Evaluation of Sentencing Persons

- the absence of sentencing factors to be considered

Decision on the area of recommendation on clause 2: Selection of the basic area of Category 2 (Fe.g., six months to one year and six months);

- Since the crime of murdering a criminal whose sentencing criteria are set, the crime of destroying and damaging the body of a criminal whose sentencing criteria are not set for larceny, the crime of abandonment of a body, the crime of violating the Specialized Credit Financial Business Act and the crime of violating the Specialized Credit Financial Business Act, only the lower limit of

3. Determination of sentence: 30 years of imprisonment;

The crime of this case is committed by the defendant 41 times in a knife with knife the victim, cut the bridge of each body by cutting the knife with electric saw, etc. to conceal it, purchased the body and the bridge part by the credit card of the stolen victim, divided the body and the bridge part, and abandoned it in a different place away from the place of crime, and the result of the crime is more serious.

While it is difficult for the Defendant to find any motive to prevent such cruel crime against the victim, the Defendant, while holding a knife, which is a deadly weapon while driving the victim, and in view of the fact that there was no trace of any physical infringement on the Defendant, the victim seems to have died without any specific resistance. Meanwhile, the Defendant, after killing the victim, sent an attitude of lacking awareness of the crime, such as exchanging text messages with other male and female at the hosting site and purchasing text messages at one’s own vehicle after the body was destroyed and damaged, or paying the stolen victim’s credit card and debit card fees, and purchasing precious metals or sporas, etc. In addition, the instant crime is sufficiently recognized by objective evidence. As seen earlier, even if it is difficult to deem that the Defendant committed the instant crime, even though it was difficult to view that the Defendant had weak ability to distinguish things or decision-making ability at the time of committing the crime, the Defendant did not drive a motor vehicle for a long time, and the Defendant did not have a serious act that does not conform with the facts that it was objectively confirmed, such as the Defendant’s name and misappropriation, etc.

With regard to the instant crime, the bereaved family members of the victim appear to have suffered from the irrecoverable pain and sworn pain, and such mental suffering of the bereaved family members seems to be difficult to be completely cured, but the Defendant does not have any effort to seek a letter or recover damage to the bereaved family members of the victim. Considering such circumstances, the Defendant’s punishment equivalent to that of the relevant crime is inevitable.

However, it is difficult to view that the defendant living away from his family and without any special occupation is living in the state of lack of social ties, such as maintaining his livelihood with sexual traffic without a special occupation, and that the defendant has a disease with mental disorder such as mental fission certificate, but it is difficult to view that there is a disease that can be recognized as a mental disorder such as mental disorder. However, since the defendant was diagnosed before the crime and the mental symptoms that can be viewed as a specific personality disorder have been discovered, it is reasonable to presume that the defendant was in a somewhat unstable state at the time of murder of the victim, and that the defendant was presumed to have been sentenced to a fine on two occasions other than the fine imposed on violation of the Road Traffic Act (driving) and the Guarantee of Automobile Accident Compensation Act, there is no other criminal power.

In addition to the above various circumstances, the defendant's age, family relation, character and conduct, environment, motive and background of the crime, means and method of the crime, circumstances after the crime, sentencing guidelines of the Sentencing Committee of the Supreme Court and all the sentencing conditions shown in the records and arguments of this case shall be comprehensively considered and determined as ordered (However, the judgment of the court below is obvious that "the judgment of 11......." is a clerical error of "the judgment of the court below", and therefore, it shall be corrected ex officio pursuant to Article 25 (1)

Judges

The judge of the presiding judge;

Judges Lee Jong-chul

Judge Choi Hyun-sung

Note tin

1) The items of "judgment on the argument of the defendant and defense counsel" in the judgment of the court below are omitted from Section 2-A. (b) and paragraph 3 are promptly connected, which seems to be a clerical error indicated in Section 3 (c) on the basis of the mistake that the indication is to be made as a port.

2) This part should also be referred to in Section 2-b.2(b).