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(영문) 울산지방법원 2016.05.13 2016노358
폭력행위등처벌에관한법률위반(공동상해)
Text

All appeals by the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles, Defendant A brought the victim at the church entrance as the victim interfered with the passage of the members of the church, so during that process, the assault committed by Defendant A to the victim constitutes a justifiable act that does not violate social rules, since it was done within the necessary extent to exclude the above interference of the victim. The remaining Defendants used tangible force in the process of removing the fighting from the victim by Defendant A to the victim so that the fighting does not continue to exist. Thus, Defendant A had the intention of assault at the time.

However, the court below erred by misunderstanding the facts charged or by misunderstanding the legal principles, which affected the conclusion of the judgment.

B. The punishment sentenced by the lower court against the Defendants (a fine of KRW 700,000) is too unreasonable.

2. Determination:

A. As to the assertion of misunderstanding of facts and legal principles, 1) "act which does not violate social rules" as stipulated in Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether certain act is justified as an act which does not violate social norms, should be determined individually by considering the following specific circumstances: (i) the motive or purpose of the act; (ii) the reasonableness of the means or method of the act; (iii) the balance between the interests and the interests of infringement; (iv) the balance between the interests of protection and the interests of infringement; and (v) the supplementary nature that there is no other means or method other than the act (see Supreme Court Decision 2010Do2680, May 27, 2010, etc.).

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