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(영문) 서울고등법원 2018.08.09 2018노1390
폭력행위등처벌에관한법률위반(상습협박)등
Text

All judgment of the court below is reversed.

Defendant shall be punished by imprisonment for a term of one year and six months.

Reasons

1. Summary of grounds for appeal;

A. The Defendant was in a state of mental and physical loss or mental weakness under the influence of alcohol at the time of each of the instant crimes.

B. The sentence that the court below sentenced to the defendant (the first instance court: imprisonment with prison labor for a year and two months, and the second instance court: imprisonment with prison labor for a period of eight months) is too unreasonable.

2. Prior to the judgment on the grounds of appeal by the defendant's ex officio, the judgment of the court below was sentenced to the first and second instances, and the defendant filed each appeal against them, and the court decided to concurrently examine the above two appeals cases.

The first and second original judgments with respect to the Defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, one sentence should be imposed pursuant to Article 38(1) of the Criminal Act. As such, the first and second original judgments cannot be maintained as they are.

However, the defendant's argument about the second judgment's mental and physical disorder is still subject to the judgment of this court, which will be examined below, despite the above reasons for reversal.

3. According to the evidence duly admitted and examined by the second instance court’s judgment as to the Defendant’s mental disorder, the fact that the Defendant committed each crime in the judgment of the second instance while drinking alcohol can be acknowledged.

However, in light of the fact that the Defendant, at the time when he was investigated by an investigative agency, specifically stated the motive and background of each of the above crimes, the date and place of the crime, and the situation before and after the crime, etc., the Defendant had no or weak ability to discern things at the time of the crime.

It is difficult to see it.

Therefore, the defendant's mental disorder cannot be accepted.

4. In conclusion, the judgment of the court below Nos. 1 and 2 is reversed ex officio. Thus, without examining the defendant's unfair argument of sentencing, Article 364 of the Criminal Procedure Act.

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