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(영문) 대구고등법원 2015.12.03 2015노398
특정범죄가중처벌등에관한법률위반(보복협박등)
Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) In light of the misunderstanding of facts or the misunderstanding of legal principles, Defendant 1 was aware that the victim was detained while living in prison due to a violation of the Act on the Control of Narcotics, Etc., and the Defendant was aware that he was arrested due to the victim’s information, the Defendant sent a letter as stated in the lower court’s criminal facts, and did not send such letter for the purpose of retaliation or intimidation against the victim. 2) At the time of committing the instant crime of mental disorder, the Defendant was in a state that he had the ability to discern the mental and physical disorder or make decisions.

3) The lower court’s sentence of unreasonable sentencing (two months of imprisonment) is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. The main content of how the defendant sent the victim with respect to the assertion of mistake of facts, etc. is that the victim will be subject to criminal punishment by informing the investigative agency of the defendant, and will cause physical harm to the victim in the future.

In full view of the contents of such letter and the circumstance in which the defendant made the above letter and sent it to the victim, and the attitude of the victim in receipt of the above letter, it can be acknowledged without reasonable doubt that the defendant threatened the victim for the purpose of retaliation against the provision of investigation orders related to the investigation of his criminal case. Thus, this part of the defendant's assertion cannot be accepted.

B. In light of the background leading up to which the Defendant prepared the instant letter and sent it to the victim as to the Defendant’s claim of mental disability, and the content of the letter, it is not deemed that the Defendant had the ability to discern things or make decisions due to the mental and medical use at the time of committing the instant crime.

Therefore, the defendant's assertion on this part cannot be accepted.

C. The Defendant and prosecutor’s assertion of unfair sentencing.

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