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(영문) 부산고등법원 2017.06.22 2017노46
살인미수등
Text

The judgment of the court below is reversed.

Defendant shall be punished by a fine of five million won.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. According to the evidence submitted by the prosecutor, including each statement at the investigative agency of the victim D and the CCTV screen in which the crime scene was recorded, the court below acquitted the defendant of this part of the charges on the ground that the defendant attempted to kill the victim D and his female, etc., who was the defendant's wife, on the grounds as stated in this part of the charges, based on the following circumstances: although the defendant was sufficiently recognized, the court below acquitted the defendant of this part of the charges on the grounds as stated in its reasoning. The court below erred by misapprehending the facts and affecting the conclusion of the judgment.

B. The sentence sentenced by the lower court to the Defendant (two million won in penalty) is too unhued and unfair.

2. Determination

A. A. Ex officio determination (in the event of an amendment of indictment - the addition of the ancillary charges) the prosecutor shall keep the facts charged of the initial attempted murder as the primary charges and applied for the amendment of an indictment to add the facts charged of special assault and bodily injury (the content of the judgment used again below is the same as the statement in the column of the crime) in the preliminary charges. The subject of the judgment was changed by this court upon permission.

As examined below, this court found the Defendant guilty of the injury resulting from special assault added in preparatory. As such, the part of the judgment below’s acquittal cannot be maintained, and the crime of causing special assault and bodily harm and the crime of assault committed by the court below which found the Defendant guilty was committed in concurrent crimes under the former part of Article 37 of the Criminal Act should be sentenced to one punishment pursuant to Article 38(1) of the Criminal Act. As such, the part of the judgment below’s conviction cannot be maintained.

However, notwithstanding the above reasons for reversal ex officio, the prosecutor's mistake on the acquittal portion of the judgment of the court below.

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