2015Gohap298 Violation of the Punishment of Violences, etc. Act (Assaults, deadly Weapons, etc.)

(Certified Special Violence)

A person shall be appointed.

Seo-dong (Public Prosecution) and Park In-Jin (Public Trial)

Attorney (at Law Firm National Assembly)

November 11, 2015

A defendant shall be punished by imprisonment for not less than eight months.

except that the execution of the above sentence shall be suspended for two years from the date this judgment became final and conclusive.

To order the defendant to be put on probation.

Facts of crime

The defendant is a person who lives in the building* heading *, and the victim B is a neighbor who lives in the same building 00 in Gangseo-gu Seoul Metropolitan Government.

On June 19, 2015: 01:30 on June 19, 2015, the Defendant expressed the victim’s desire to see the noise from his house in front of the above * Around 01:40 on the same day, the Defendant used a knife (18cc in length, about 30cc in length) at the victim’s house located outside of the noise, and knife the victim’s house located outside of the noise again from the noise to the outside of the noise, and knife the knife that knife the victim’s hand who was defending the Defendant, and knife the victim’s hand over the victim’s hand.

Accordingly, the defendant carried a knife, which is a dangerous thing, and assaults the victim.

Summary of Evidence

Omission

Application of Statutes

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

Articles 261 and 260(1) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Probation;

Determination as to the establishment of violence and self-defense, etc. under Article 62-2(1) of the Criminal Act

1. Summary of the defendant's assertion

A. While the Defendant had continuous conflict with the victim living in the lower floor due to noise coming from the ordinary house, on the day of the instant case, there was a knife for the victim to find out and take a bath in the Defendant’s house, and tightly left before the front of the front door of the house by pushing the Defendant, but the Defendant did not immediately tension with the victim. Accordingly, the Defendant did not assault the victim.

B. The Defendant is merely a knife of having the victim go through, and having committed violence first to the Defendant, and thus having a knife in order to defend it, and thus there is excessive self-defense or excessive defense.

2. The following facts and circumstances that can be acknowledged by the court by comprehensively taking into account the various evidence duly adopted and investigated by the court: ① the victim and the investigative agency stated in the court that “the defendant would have to find the house of the defendant and return back to her house, knife the defendant knife and knife the defendant’s hand, and knife the defendant’s back knife to 2 to 3th floor. The defendant knife the knife with the defendant’s hand, and knife the knife with the defendant’s hand, and the situation at the time. ② At the time of the defendant’s house, C stated in the investigative agency that “When the victim went back to knife the victim's house, knife the victim will knife the victim's knife's knife and knife the defendant's knife's knife.

3. Whether it constitutes excessive self-defense or excessive defense.

A. It is deemed that the perpetrator’s act was not aimed at defending the victim’s unjust attack, but rather at attacking with one another’s intent to attack, and that the perpetrator became a counter-influence against the attack.

In a considerable case, a harmful act has the nature of an attack at the same time as an act of defense, and thus cannot be deemed as an act of self-defense or excessive defense (see Supreme Court Decision 2000Do228, Mar. 28, 200, etc.).

B. In light of these legal principles, although the victim found the defendant several times in the past and seems to have made a little excessive speech and behavior and resisted against the defendant at the time of the ruling, the following facts and circumstances shown in the records and arguments of this case: ① the victim was called the defendant's house knife with the defendant's house knife with the defendant's house knife with the defendant's house knife with the defendant's house knife with the defendant's house knife with the defendant's house knife with the defendant's house knife with the victim's house knife with the victim's house knife with the victim's house knife with the victim's house knife with the victim's knife in the process of dispute with the defendant, ② the victim did not carry a knife with the victim's house knife with the victim's house knife.

1. The grounds for sentencing;

[Determination of Type] Violence Crime Group, Violence Crime, Type 6 (Special Violence)

【No Special Convicted Person】

[Scope of Recommendation] Imprisonment of six months to one year (the basic area)

2. The crime of this case where a sentence of sentence was rendered was committed by the residents of the lower floor who had a long conflict due to noise between the floors, and the crime of this case was committed by the residents of the lower floor who resisted that they would promptly go through the late night at the night, and the knife was found. In light of the fact that there was a risk of causing serious injury, etc. to the victim, and that the victim suffering from noise that the ordinary defendant was engaged in indecent activities in multi-family housing and suffered from severe punishment against the defendant, it is not easy that the crime is committed.

However, considering the fact that the victim was not significantly different due to the defendant's assault, the fact that the victim's excessive speech and behavior resulted in a contingent crime, the fact that there was no previous conviction on two occasions or more times of a fine, etc., the probation is ordered to determine the same punishment as the order within the scope of the recommended punishment according to the sentencing guidelines in consideration of various circumstances shown in the records and arguments, such as the defendant's age, character and conduct, environment, relationship with the victim, circumstances after the crime, etc., and the execution of the sentence is suspended, but special matters to be observed (to refrain from consciousness or behavior that causes excessive noise to neighbors of the defendant's residence during the night hours) for the prevention of recidivism, etc.

Jurors verdict and Sentencing Opinion

1. Determination of not guilty and not guilty

○ "guilty": Seven persons (one full-time)

2. Sentencing Opinion

○ 8 months of imprisonment, 2 years of suspended execution, 1 year of probation: seven persons (one full-time probation).

It is so decided as per Disposition through a participatory trial according to the defendant's wishes.

Judges by the presiding judge;

Judges Dogman

Judges Song Jae-chul