Defendant

Both parties

Kim Jong-hee

Law Firm Korea, Attorneys Kang Jae-hun et al.

Suwon District Court Decision 2009Gohap260 Decided April 2, 2010

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for nine years.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) The instant traffic accident occurred as a result of the Defendant’s negligence and talking about 1.8 meters away from the entrance of the instant defense wall, and talking about 1.8 meters away from the entrance of the instant defense wall to the right-hand part of the instant vehicle. The instant traffic accident did not cause a traffic accident in which the Defendant intentionally kills the victim and intentionally applied the steering gear of the instant vehicle to the right-hand part of the instant vehicle, thereby receiving the entrance right-hand part of the instant vehicle’s right-hand side. The instant traffic accident was entirely taken once the entrance of the defense wall was entirely received by negligence, and the Defendant did not return to the right-hand side of the instant defense wall to the location of the instant accident, where inside the outer wall was received from the entrance of the instant defense wall to the right-hand part of the instant vehicle.

B) Two sculptures (No. 1) of the vehicle parts seized by an investigative agency were modified to their nature and form, so their authenticity cannot be recognized and procedural errors such as the warrant principle in the process of seizure and appraisal are inadmissible. The part of the expert witness Nonindicted Party 1’s written expert witness Nonindicted Party 1’s written expert witness’s written expert witness’s written expert witness’s written expert witness testimony for reinforcement is inadmissible.

C) In addition, Nonindicted 1, without obtaining the Defendant’s consent or a warrant from the court, collected red paintings buried on the instant vehicle and compared and analyzed with the color painting of the steel structure attached to the inner side of the protective wall (hereinafter “the steel structure of this case”). As such, the parts of the appraisal result are inadmissible.

2) Unreasonable sentencing

The sentencing of the court below (15 years of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentencing of the court below is unfair because the sentencing of the court below is too unfortunate.

2. Determination

A. Ex officio determination

On September 25, 198, the Defendant had been married with Nonindicted Party 6 on September 25, 1998, but was brought a divorce lawsuit against the victim on August 29, 2008. On September 16, 2008, Nonindicted Party 7 asserted that the victim was in an influorial relationship with the victim, she would not have been able to recover the relationship between the victim and Nonindicted Party 9. On the other hand, the Defendant brought a lawsuit against the Defendant, such as cancellation of the ownership transfer registration, and the Defendant had been able to kill Nonindicted Party 1 on his/her own with the victim on the front of the instant accident. On the other hand, the Defendant had been unable to recover the relationship between the victim and Nonindicted Party 1 on the front of the instant accident and the Defendant’s head of the instant accident at the time of his/her death on the front of the instant accident. On around 18:00, the Defendant tried to change the part of the instant vehicle to the victim’s head of the instant accident.

However, even if the judgment of the court below is reversed ex officio, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court.

B. Judgment on the assertion of mistake of facts or misapprehension of legal principles

1) Determination on the assertion on admissibility of evidence

Article 308-2 of the Criminal Procedure Act provides that evidence collected in breach of the due process shall not be admitted as evidence. In principle, not only the evidence collected by an investigative agency in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, but also the secondary evidence obtained based on it shall not be admitted as evidence for conviction. However, if an investigative agency’s violation of the procedures does not constitute a case of infringing on the substantial contents of due process, but rather, the admissibility of evidence does not constitute a case of infringing on the substantial contents of due process. Rather, if the Constitution and the Criminal Procedure Act establish a procedural provision concerning criminal procedure and promote harmony between the principles of due process and substantial truth and thereby promoting the realization of criminal justice, the court may use it as evidence for conviction.

According to the testimony of Non-Indicted 1 and 2 of the court below, Non-Indicted 1 and Non-Indicted 2 of the same case discovered the steel structure of this case while visiting the accident site of this case with Non-Indicted 2 on February 2, 2009 and conducting a field investigation. When it is determined that the steel board of this case was separated from the steel board of this case before the right side of the vehicle of this case (hereinafter “the steel board of this case”). The fact that the steel board of this case was seized in the form of voluntary submission of the steel board of this case and the steel board of this case from the defendant around September 22, 2009 (the attorney submitted the seizure report of this case as evidence, but the prosecutor did not submit the seizure report as evidence). Since the steel board of this case does not constitute the act of voluntary alteration of the steel board of this case, it cannot be viewed that it constitutes a seizure of the steel board of this case without the warrant of this case since it constitutes a seizure of the steel board of this case, it cannot be viewed that it constitutes a seizure of the steel board of this case without the warrant of this case.

In addition, in the process of confirming whether the steel board of this case was part of the steel board for reinforcement of this case, it was done without a warrant to seize the steel board of this case, which was kept in custody in an industrial company after the accident of this case. However, it seems that the vehicle of this case was actually waiting for the scrapping of the industrial company, and was in custody in the industrial company, and no forced force against the defendant's human rights was exercised during the process of seizure. Since the steel board of this case was confirmed as part of the steel board of this case, the investigation agency seized the steel board of this case from the defendant in the form of voluntary submission, it does not constitute a case where the act of this case violates the substantial contents of due process, but rather, it constitutes exceptional cases where the Constitution and the Criminal Procedure Act to exclude the admissibility of evidence violates the purpose of criminal procedure law by establishing the procedural provisions for criminal procedure and promoting harmony between substantial truth and substantial truth, and thereby, it constitutes evidence to acknowledge the steel board of this case's steel board of this case as evidence.

In addition, the comparison and analysis of the red paint and the color paint of the steel structure of this case, which are buried on the vehicle of this case, are included in the appraisal, and it is not required to follow the warrant as seen earlier, and even if there was a violation of the procedure in collecting the red paint buried on the vehicle of this case without the warrant, it does not constitute the case of infringing the substantive contents of due process, and it constitutes an exceptional case where the exclusion of the admissibility of evidence can be judged as causing a result contrary to the criminal justice justice as seen above, and it is reasonable to view that the evidence can be admitted as evidence of guilt (However, it can be recognized that the red paint buried on the vehicle of this case and the painting of the steel structure of this case are similar to the color paint of the steel structure of this case).

2) Determination as to the occurrence of the so-called primary accident

6. Examining the lower court’s and the lower court’s determination that the front right-hand side of the instant vehicle and the front right-hand side of the instant vehicle are hard to see that the front and rear-hand side of the instant vehicle were 1 and the front front and rear-hand side of the instant vehicle were 1 and the front and rear-hand side of the instant vehicle were 1 and the front-hand side of the instant vehicle were 1 and the front and rear-hand side of the instant vehicle were 1 and the front-hand side of the instant vehicle were 1 and the front-hand side of the instant vehicle was 1 and the front-hand side of the instant vehicle was 1 and 3. The front-hand side of the instant vehicle was 1 and the front-hand side of the instant vehicle was 14 and the front-hand side of the instant vehicle was 1 and 2. It appears that the front-hand side of the instant vehicle was 1 and the front-hand side of the instant vehicle was 1 and the front-hand side of the instant vehicle was 14.

3) Determination on the criminal intent of murder

In a criminal trial, the conviction shall be based on evidence with probative value sufficient to cause a judge to have a reasonable doubt that the facts charged are true. If there is no evidence to form such a conviction, even if there is doubt that the defendant is guilty, it shall be determined as the benefit of the defendant. However, such conviction should not be necessarily formed by direct evidence, unless it violates empirical and logical rules, and it may be formed by indirect evidence. Even if indirect evidence does not have full probative value as to the facts of the crime, if it is deemed that there is a comprehensive probative value that can not be established by itself if comprehensive consideration of all evidence is conducted under mutual relation, even if indirect evidence does not have full probative value as to the facts of the crime.

In addition, the intent of murder is not necessarily recognized as the purpose of murder or the planned intention of murder, but 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 as well as the so-called uncertain intentional negligence. If the defendant does not confession the criminal intent of murder, 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, the motive of the crime, the possibility of causing the death, the possibility of causing the result of the death, the existence of the act of avoiding the result after the crime, etc.

In light of the following circumstances acknowledged by the above evidence, i.e., the victim who has long been suspected of having a imperme relationship with the defendant, filed a divorce and a lawsuit for division of property equivalent to 5.4 billion won against the defendant, and Nonindicted 7 claiming that the victim had a imperme relationship with the defendant and the victim had considerably deteriorated the relationship between the defendant and the victim by finding the house in which the victim resides and avoiding disturbance, and leading two people to separate them. On the day of the instant accident, on the ground that the defendant called the victim's father, the victim called the victim on several occasions, but it seems that there was a conflict between the defendant and the two persons until the instant accident occurred. As seen earlier, the defendant would have been aware that the victim had no intention or negligence at the time of the instant accident, even if he had driven the vehicle after the first accident and returned to the front part of the road near the place, and that the victim had no intention or negligence at the time of the instant accident, and it would have been recognized that the victim had no intention at the time of the accident.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant and prosecutor's assertion of unfair sentencing, and the judgment of the court below is reversed, and it is so decided as follows.

On September 25, 1998, the defendant married with the non-indicted 6 of the victim, but on August 29, 2008, the defendant was brought a divorce lawsuit against the victim on August 29, 2008. On September 16, 2008, the non-indicted 7 asserted that the victim was in in inhumanial relationship with the victim was in a separate state with the victim. At that time, the father, non-indicted 8 of the victim brought a lawsuit against the non-indicted 9 of the defendant, such as the cancellation of ownership transfer registration, and the marital relationship with the victim became impossible to recover.

On the other hand, at around 19:00 on November 11, 2008, the Defendant met the victim at the red-dong of Seodaemun-gu Seoul, Seoul, but was traveling from 20:00 to 21:40 on the same day the victim was on board the front line of the vehicle of this case while driving the vehicle of this case and driving the vehicle of this case on the front line of Eunpyeong-gu, Seoul and from 20:00 to 21:40 on the same day, the Defendant got two-lanes of the second line road of this case on the front line of both weeks at the right side of the vehicle of this case. The Defendant was able to kill the victim on the front side of the vehicle of this case at the right side of the vehicle of this case, and was able to kill the victim from the front line of the vehicle of this case at the right side of the road of this case. The Defendant was able to obtain the victim’s death from the front line of the vehicle of this case, and caused the death of the victim with the front part of this case.

The summary of the evidence of the facts constituting the crime acknowledged by this court is as stated in the judgment below, except for the addition of “the comprehensive analysis of traffic accidents prepared by the Road Traffic Authority, the written request for appraisal by the President of the National Institute of Scientific Investigation (No. 18, 2010) and the written request for consultation with Non-Indicted 10,” and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 250(1) of the Criminal Act (Selection of Imprisonment or Imprisonment for Imprisonment)

The crime of this case was committed by the Defendant for about 10 years of marriage, and the nature of the crime is very heavy, and it is unclear whether the Defendant planned from the beginning, attempted to kill the victim by taking the protective wall while carrying the victim on the top of the vehicle. However, it is still unclear whether the Defendant tried to kill the victim. However, considering the fact that the second accident, which was the front part of the front part of the front part of the fire wall where the victim was seated, was caused by the second accident where the part of the entrance wall part of the fire wall, which is the front part of the front part of the steering gate where the victim was seated, was able to kill the victim by causing a second accident where the victim was able to sit on the front part of the accident, and the method of the crime is very shock.

However, the punishment shall be determined as ordered in consideration of all the sentencing conditions shown in the pleadings of the instant case, including the fact that the Defendant has no particular criminal record other than the minor fine, the fact that it is difficult to regard the Defendant as having committed the instant crime in a planned manner from the beginning, the fact that the victim’s bereaved family members have agreed with the victim, and

Judges Choi Jae-in (Presiding Judge)