(영문) 서울남부지방법원 2019.8.27. 선고 2018노1316 판결

At the time of the instant case, the Defendant: (a) had a knife the knife on the table; (b) had a knife of the knife; (c) had a knife of the knife; and (d)

B. Unreasonable sentencing

The punishment of the lower court (one million won of a fine) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal, the Defendant was sentenced to four months of imprisonment with prison labor at the Seoul Southern District Court on August 13, 2018 and the judgment became final and conclusive on January 31, 2019. The crime of each of the crimes and the crime for which the judgment of the lower court rendered against the Defendant became final and conclusive are concurrent crimes under the latter part of Article 37 of the Criminal Act, and the punishment is determined after considering the case at the same time and equity in accordance with Article 39(1) of the Criminal Act, and examining whether to reduce or exempt the sentence. Thus, the lower judgment is no longer maintained.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, despite the above reasons for ex officio reversal.

3. Judgment on the defendant's assertion of mistake of facts (the point of special intimidation)

A. Facts charged

Around 15:00 on October 17, 2017, the Defendant, at the D restaurant operated by Gangseo-gu Seoul Metropolitan Government (the age of 65), became another customer and had a dispute with him/her, and he/she was subject to the control by putting the shoulder from the said victim, and led him/her to show the blade length (13cm) of the blade, which is a dangerous object he/she was in possession, and act as a knife, and threatened the said victim by acting as a knife with the knife, which is a dangerous object. Accordingly, the Defendant threatened the said victim by acting as the knife of the knife, a dangerous object.

B. The judgment of the court below

The Defendant also asserted the same purport as the reasons for appeal in the lower court. Unlike the statement made by the investigative agency, the lower court determined that the Defendant and the victim did not specifically appear to have made a statement in the investigative agency to the effect that the Defendant, at the time of the instant case, did not threaten the Defendant with the knife at the time of the instant case, and threatened the knife with the knife, and that the Defendant made a false statement at the investigative agency by knifeing the knife with the knife at the time of the instant case. However, the Defendant recognized the fact that the knife knife was set up on the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.

C. Judgment of the court below

In addition to the following circumstances on the grounds of the judgment of the court below, if the victim testified to the effect that "at the time of the case, at the court of the court below, the victim did not threaten the victim with the knife, did not knife the knife, and threatened the victim with the knife, and that "the victim made a false statement at the investigation agency by misunderstanding the knife with the knife with the knife," and then indicted for the above testimony, the defendant was convicted of the crime that "at the time of prosecution with the knife with the knife, threatened the defendant with the knife with the knife or with the defendant's request (refer to the contents of Seoul Southern Southern District Court Decision 2018Da6077)" and the defendant was sentenced to the conviction (refer to the contents of the judgment of the court below as stated in the facts charged, it can be recognized that the defendant acted as the knife and threatened with the victim.

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting a crime and evidence admitted by this court is as follows: "The defendant was sentenced to four months of imprisonment with prison labor for larceny at the Seoul Southern District Court on August 13, 2018 and confirmed on January 31, 2019" in the first copy of the facts constituting a crime in the judgment of the court below; and the summary of the evidence is as stated in each corresponding column of the judgment of the court below, except for adding "(2) the details of the case search in the Supreme Court on January 1, 2019, and three copies of the judgment of the court on January 31, 2019 to the summary of the evidence."

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 284 and 283(1) of the Criminal Act (the point of special intimidation), Article 314(1) of the Criminal Act (the point of interference with business), the selection of fines for negligence

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Grounds for sentencing

The Defendant interfered with the business of driving a cafeteria operated by the victim, and threatened the victim with a dangerous object knife. In light of the contents and methods of each crime, the nature of the crime is not good. Nevertheless, the Defendant did not seem to have denied part of the crime, and did not seem to have a strong attitude of reflecting it.

On the other hand, the victim does not want the punishment of the defendant. The defendant suffers from mental illness such as stimulative disorder, depression, etc., and the economic situation is not good. Each of the crimes in this case is related to larceny for which a judgment has become final and conclusive and concurrent crimes under the latter part of Article 37 of the Criminal Act, and it is necessary to determine the punishment in consideration of equity with the case of

In addition, the sentencing conditions, such as the defendant's age, character and conduct, the motive, means and consequence of the instant crime, and the circumstances after the crime, shall be determined as per the disposition.

Judges

Justices Kim Jong-hoon

Judges Cho Chang-hwan

판사 김샛별

Note tin

1) The Defendant was convicted of having been convicted of perjury.