(영문) 서울서부지방법원 2019.01.24 2018노1001

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(영문) 서울서부지방법원 2019.01.24 2018노1001

폭행

Text

The judgment of the court below is reversed.

Defendant shall be punished by a fine of two million won.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. The Defendant did not commit any assault against the victim’s interest, and even if he was sealed, it is merely limited to the extent that he attempted to restrain the victim’s strong assault, and thus, constitutes self-defense or legitimate act in light of the difference between the Defendant and the victim’s physical strength.

B. The sentence of the lower court (two months of imprisonment, two years of suspended execution) is too unreasonable.

2. Determination

A. In a dispute between the victim and the victim of mistake of facts and misapprehension of legal principles, there was the victim’s assertion that the victim was flicking the Defendant’s flick and flicking the Defendant’s head, the victim’s statement that the Defendant was flicking twice the victim’s blick part, and the victim’s body fighting between the Defendant and the victim.

In full view of the statements of witnesses (aD, a part of the judgment below's testimony of the AB, and a part of the AC's investigation agency's testimony) expressed or "falbation", it is recognized that the defendant committed an assault against the victim by smugglinging the victim when the defendant was in a dispute with the victim, and that the defendant did not constitute a legitimate act as a passive resistance in light of the background, degree, etc. of the assault.

This part of the defendant's assertion is not accepted.

B. The lower court’s punishment is too unreasonable in light of the Defendant’s age, environment, health conditions, etc., as well as the following factors: (a) the Defendant committed violent crimes among the detention house’s acceptance of the judgment on the assertion of unfair sentencing; (b) the Defendant had a same criminal record on five occasions; (c) the victim had a side of inducing the Defendant’s assault; (d) the degree of the Defendant’s assault is not much serious; and (e) the victim’s excess was due to the assault

The argument of unfair sentencing is justified.

3. Since the appeal by the defendant is well-grounded, the judgment below is reversed in accordance with Article 364(6) of the Criminal Procedure Act and it is re-written.

참조조문

-형사소송법 제364조 제6항

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