2017No318 homicide, attempted murder and intrusion upon residence

2017ro17(Consolidated) Probation Order

A

Defendant-Probation Order Claimer

This paper (prosecution), on-site (request for a probation order), Kim Gung-si (Trial)

Attorney K (Korean National Assembly)

Gwangju District Court Decision 2017Dahap30, early 371 (merged) Decided June 16, 2017

October 26, 2017

The appeal filed by the defendant and the person who requested probation order shall be dismissed.

1. Determination of misconception of facts or misapprehension of legal principles by the defendant and the person requesting probation order

A. The assertion

The defendant and the person requesting probation order (hereinafter referred to as the "defendants") found the defendant guilty of attempted murder by misunderstanding the facts and committing an attempted murder, even though they did not intend to kill the victim, on the occasion of the brush.

B. Determination

The court below found the defendant guilty on the facts charged that the defendant, based on the evidence in the judgment, such as the statement of the police against the victim, entered the victim's house and 2 minutes of the two-minutes of the victim's hand, flaged the victim's neck, flaged the victim's neck, flaged the victim's head and the inner part of the victim's head and the inner part of the victim's inner part (60cm, approximately 50cm in diameter, 50cm in diameter) and flaged the victim's head and inner part where the victim's assaulted the victim, and flagddd the victim's head and inner part of the victim's body, but reported the escape to the police.

In full view of the circumstances revealed in the facts duly admitted and examined by the court below in accordance with the evidence, i.e., the defendant's act of making up approximately two minutes of the victim's neck, the head and the inner part of the victim's head and the inner part of the knife several times after cutting down the knife, and the escape is the defendant's act, the progress of the defendant's act, the defendant's act and the inner part of the victim's head and the inner part of the knife, and the knife that may directly threaten the victim's life, the court below's decision that recognized the defendant's intention to kill the victim is legitimate.

This part of the defendant's assertion is not accepted.

2. Judgment on the defendant's mental disability claim

A. The assertion

At the time of committing a crime, the Defendant lacks the ability to discern things or make decisions due to intellectual disorder, etc.

B. Determination

Although the defendant asserted the same purport in the court below, the court below rejected the defendant's claim of mental disability on the grounds of the detailed circumstances stated in the "judgment on the defendant's and defense counsel's argument".

Examining the reasoning of the lower judgment in comparison with the evidence duly admitted and examined by the lower court, the lower court’s determination on this part is justifiable. The Defendant’s assertion is not acceptable.

3. Judgment on the Defendant’s assertion of unreasonable sentencing

In a case where there is no change in the sentencing conditions compared to the lower court, and the sentencing of the lower court is not beyond the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

As new sentencing data to be considered for the defendant is not submitted in this court for the defendant, there is no change in the sentencing conditions compared with the original judgment. Also, considering the circumstances and the content of the crime, considering the defendant's consideration for the defendant, including the fact that the crime was committed against the defendant, and the defendant was committed with a mental disorder of class 2 with intellectual disability, the crime was not good in light of the circumstances and the content of the crime, and the defendant did not receive a letter from the victim, it cannot be deemed that the lower court's punishment was excessively unreasonable and exceeded the reasonable scope of discretion. The defendant's assertion is rejected.

4. Judgment on the request for probation order

When a defendant has lodged an appeal against a prosecuted case, it is deemed that an appeal has been filed regarding a case claiming probation order. However, the defendant or his/her defense counsel did not submit any grounds for appeal regarding a case claiming probation order, and the judgment of the court below cannot find the grounds for reversal ex officio in the part regarding the case claiming probation order.

This part of the appeal by the defendant is not accepted.

5. Conclusion

Appeal against the defendant's case and case of probation order shall be dismissed as it is groundless.

The presiding judge, judge and police superintendent;

Judges Lee Jong-tae

Judge Park Jong-hoon