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(영문) 서울고등법원 2015.06.11 2015노832
살인미수등
Text

The part against Defendant A and B in the judgment of the first instance court shall be reversed.

Defendant

A and B shall be punished by imprisonment for three years.

(b).

Reasons

1. Summary of grounds for appeal;

A. The Prosecutor (Defendant B and C) sentenced to Defendant B and C by the first instance court (Defendant B: imprisonment with prison labor for a maximum of three years, with prison labor for a short of two years, with prison labor for a short of two years, with prison labor for a fine of four million won) is deemed to be too uneasible and unfair.

B. Defendant A (1) misunderstanding of facts does not state to Defendant B that “if he wn with the victim G, the other party would be kniff with kniff,” and only thought that Defendant B thought the kitchen knife in order to threaten G, etc., and did not anticipate that Defendant B used the kitchen knife in order to threaten G, etc., it was nothing more than that of the victims with the intention of murder, and thus, Defendant B cannot be held liable for the crime of attempted murder as a co-principal. However, the judgment of the first instance which found Defendant A guilty of the attempted murder is erroneous in the misapprehension of facts.

(2) The sentence imposed by the first instance court on Defendant A (a maximum of three years of imprisonment and a short of two years of imprisonment) is too unreasonable.

C. In full view of the circumstances before and after the instant crime, including the process and motive of the misunderstanding of facts by Defendant B’s misunderstanding of facts, and the occurrence of the consequences of the murder and the possibility thereof, Defendant B’s perception and acceptance of the victims’ death even though it is difficult to deem that Defendant B did not have any negligence, the judgment of the first instance court that recognized Defendant B’s criminal intent as murder is erroneous in misunderstanding of facts.

(2) The sentence imposed on Defendant B by the first instance court of unfair sentencing is too unreasonable.

2. Judgment on the assertion of mistake of facts by Defendant A and B

A. (1) The first instance judgment on Defendant A’s assertion of mistake of facts is based on the evidence duly adopted and investigated, namely, the following circumstances acknowledged by the first instance judgment, namely, ① Defendant B has a “A”-knife for the background leading up to having the kitchen knife in the prosecutor’s office and the first instance court, and the background leading up to the kitchen knife of the victims.

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