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(영문) 대구지방법원 2013.05.28 2012노3632
폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)등
Text

All appeals filed by prosecutors and defendants are dismissed.

Reasons

1. The court below's decision to dismiss a public prosecution against the victim E among each of the crimes committed by the defendant. Since the court below's decision to dismiss the public prosecution against the defendant's assault against the victim E, and the prosecutor is exempted from the public defense subject to appeal, and the dismissal of the public prosecution is finalized, the court below's decision to dismiss the public prosecution is to be decided only for the guilty part

2. Summary of grounds for appeal;

A. Prosecutor 1) In light of the misapprehension of the legal principle (Omission of Confiscation), excessive amount of the seized article, which is the instant confiscated article, becomes the subject of confiscation, the lower court omitted the confiscation of the above confiscated article. Therefore, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment. 2) In view of the fact that the nature of the instant crime of unfair sentencing is inferior and that there is possibility of recidivism in light of the Defendant’s violent assault, etc., the sentence (three years of suspended execution for one year of imprisonment) imposed by the lower court is too uneasible

B. Defendant 1) In the absence of a misunderstanding of facts by misunderstanding of facts, the lower court recognized such facts and convicted the Defendant, thereby adversely affecting the conclusion of the judgment by misunderstanding the facts. 2) The sentence imposed by the lower court of unfair sentencing is too unreasonable.

3. Determination

A. According to Article 48(1)1 of the Criminal Act regarding the prosecutor’s assertion of misapprehension of the legal doctrine, in a case where “those who do not belong to a person other than the criminal, or have acquired it with the knowledge of the fact after the crime, and have provided or intended to provide it for the criminal act,” the whole or part of the said

However, excessive restriction, which is the seizure of this case where the prosecutor sought confiscation, is owned by victim D, not the defendant, and thus, it is not subject to confiscation under the above provision.

The prosecutor's above assertion is without merit.

(b) mistake of facts by the defendant.

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