(영문) 서울서부지방법원 2020.02.13 2019노1399

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(영문) 서울서부지방법원 2020.02.13 2019노1399

폭력행위등처벌에관한법률위반(공동상해)등

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All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendants 1) misunderstanding of facts or misunderstanding of legal principles with respect to the crime of heavy confinement. Since the Defendants were born to the vehicle in order to safely gather the victim G under the influence of alcohol, there was no intention to detain the Defendants.

In particular, Defendant C brought about the vehicle to bring about Defendant C, and there was no thought that the victim was born to the vehicle.

B) After the victim was born to the vehicle, Defendant B did not commit the act of assault, and Defendant A did assault the victim twice, but such assault act does not constitute “cruel act” of the crime of heavy confinement. Even if the intent of confinement is acknowledged to the Defendants, Defendant A’s act of assault was contingent, and thus, Defendant B and C’s act of assault is not a crime of heavy confinement but a crime of heavy confinement. Therefore, the judgment below which found the Defendants guilty of the crime of heavy confinement is erroneous by misapprehending the legal principles or misapprehending the legal principles.

2) The sentence imposed by the lower court on Defendant A (three years of probation, probation, and community service order 200 hours in one year and four months of imprisonment) is too unreasonable. (B) As to the crime of mistake of facts or misapprehension of legal principles (not guilty part on Defendant A and B), Defendant A and B violated the Punishment of Violence, etc. Act (joint injury) (not guilty part on Defendant A and B), the act of assault against Defendant A and B led to the occurrence of a series of violence, and the same place of assault is the same, and therefore, the harmful act against the victim of the above Defendants is a common relationship between time and place.

Accordingly, the above defendants can be deemed to have committed a crime of violation of the Punishment of Violences, etc. Act (joint injury). Thus, the judgment of the court below which acquitted the defendants A and B of the violation of the Punishment of Violences, etc. Act (joint injury) is erroneous in the misapprehension of facts or in the misapprehension

2. The lower court’s decision on unreasonable sentencing.

참조조문

-폭력행위 등 처벌에 관한 법률

유사 판례

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-수원지방법원 성남지원 2014.08.19 2014고정298

-대구지방법원 2014.11.14 2014노1712

-서울남부지방법원 2013.12.19 2013노756