[1] The criteria for the recognition of murder in the crime of murder, and the criteria for determining the intention of murder in a case where the defendant asserts that there was no intention of murder in the crime of murder, and that there was only the only intention of murder or assault at the time of the crime of murder

[2] In the application of the provision against disadvantageous changes, the criteria for showing seriousness between the irregular term of punishment and the regular term of punishment

[1] The criminal intent of murder in the crime of murder is not necessarily recognized as the purpose of murder or the planned intention of murder. It is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to his own act, and its recognition or prediction is not only conclusive but also conclusive but also it is so-called willful negligence. In a case where the defendant asserts that there was no criminal intent of murder at the time of the crime, and only there was only the criminal intent of murder or assault, the issue of whether the defendant had the criminal intent of murder at the time of the crime shall be determined by taking into account the objective circumstances before and after the crime, such as the background leading up to the crime, motive, existence and type of the crime, method of attack, disorder and repetition of the prepared deadly weapons, and the possibility of causing the result of death.

[2] In the case where the defendant appealed, the appellate court cannot sentence more severe punishment than that of the first instance court. In the application of the prohibition of disadvantageous changes, in the case where the seriousness between the irregular term and the regular term of punishment is added, the highest short term and the regular term of the irregular term of punishment shall be compared.

[1] Articles 13 and 250 (1) of the Criminal Act / [2] Article 368 of the Criminal Procedure Act

[1] Supreme Court Decision 200Do2231 delivered on August 18, 200 (Gong2000Ha, 2038) Supreme Court Decision 2000Do5590 Delivered on March 9, 2001 (Gong2001Sang, 910) Supreme Court Decision 2001Do3997 Delivered on September 28, 2001 (Gong2001Ha, 2405) Supreme Court Decision 2001Do6425 Delivered on February 8, 2002 (Gong2002Sang, 726)

Defendant 1 and one other

Defendants

Attorney Lee Do-apap

Seoul High Court Decision 2005No1853 delivered on January 17, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The intent of murder in the crime of murder does not necessarily require the intention of murder or planned murder, but it is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to one’s own act, and its recognition or prediction is not only conclusive but also conclusive. In a case where the defendant asserts that there was no criminal intent of murder at the time of committing the crime, and that there was only the criminal intent of murder or assault, the issue of whether the defendant had the criminal intent of murder before and after the crime should be determined by taking into account the objective circumstances before and after the crime, such as the background leading up to the crime, motive, type and method of the crime, the nature and repetition of the prepared deadly weapons, the degree of the occurrence of the crime, and the possibility of the occurrence of the death (see, e.g., Supreme Court Decision 2001Do6425, Feb. 8, 2002).

The court below is justified in light of the records and the legal principles as seen earlier, and there is no error of law such as misunderstanding of legal principles as to willful negligence in the crime of murder, incomplete deliberation, or misunderstanding of facts against the rules of evidence, as alleged in the grounds of appeal by the defendants, which caused the death of the victim non-indicted 1.

2. The court below reversed the judgment of the court of first instance on the ground that the defendant 1 was punished by imprisonment with prison labor for a maximum term of 15 years, short term of 7 years, and the sentencing of the court of first instance on the ground that the defendant 1 was a juvenile, and decided to imprisonment with prison labor or imprisonment with prison labor for each of the criminal facts stated in the judgment of the court below on the ground that the above defendant became an adult at the court of first instance, and applied the pertinent provisions of the Criminal Act, such as Articles 250(1) and 30 of the Criminal Act. The court below applied the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act to the extent that the above defendant was punished by imprisonment with prison labor for a term of 12 years within the scope of the punishment term, where the punishment for concurrent crimes

However, in the case where Defendant appealed, the appellate court cannot render a sentence more severe than that of the first instance court, and in applying the provision on prohibition of disadvantageous alteration, in the case of applying this provision, where the gravity between the irregular term and the regular term of the punishment, the short term and the regular term of the punishment should be compared. Therefore, even in this case where only Defendant 1 appealed, even if only Defendant 1 has declared a regular term of punishment, it cannot be sentenced to imprisonment more than 7 years, which is the short term and 7 years sentenced by the first instance court. Nevertheless, the lower court imposed Defendant 1 on 12 years in excess of this provision. In so doing, it did not err by misapprehending the legal doctrine on prohibition of disadvantageous alteration, thereby affecting the conclusion of the judgment. Accordingly, the purport of pointing this out is with merit.

3. In light of the records, the Defendants’ methods of committing the crime are very cruel, and the victim’s life is very heavy due to the Defendant’s criminal act, and the result of the crime is extremely heavy. However, according to the records, although Defendant 2 grow up under his parent’s chain, she went home to the extent that she would lose her mother’s mind at 3 to 4 times a month, and did not sleep the above Defendant’s body, and his mother used violence against the above Defendant, and his body did not properly look at the above Defendant’s body, and the above Defendant was unable to take care of his body before she was found to have been sentenced to criminal punishment. However, the above Defendant was unable to take care of the victim’s life with her father and her mother’s awareness that he was unable to take care of the victim’s life with her mother and her mother, and it was difficult for the Defendant to take care of his body from 1 to 20 days before her school life with her mother and her mother.

4. Therefore, all appeals by the Defendants are accepted, and the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)