[1] The meaning of and standard for determining "purpose of return" under Article 5-9 (2) of the Aggravated Punishment, etc. of Specific Crimes Act

[2] The case holding that the defendant cannot be deemed as having inflicted an injury on the victim for the purpose of retaliation

[1] Article 5-9(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes added a subjective element related to a criminal case trial or investigation to the elements of the crime of injury in order to protect the victim after the report, or added a subjective element related to the criminal case’s purpose to protect the victim after the report, and the statutory punishment is more severe than the crime of injury. The purpose of retaliation for the purpose of retaliation, which is a subjective illegal element other than the intentional act, is obvious in its legal text, and its purpose is not required to be active desire or conclusive recognition, and it is sufficient to have dolusence. However, whether there was such purpose should be determined reasonably in light of social norms by taking into account various circumstances such as the defendant’s age, occupation, etc., motive and method of the crime, details and mode of the act, and personal relation with the victim.

[2] The case holding that the defendant cannot be deemed to have inflicted a bodily injury on the victim for retaliation on the ground that the remaining after he thought that the defendant was sentenced to a fine in the past when the defendant was under the influence of alcohol while drinking in the package of the victim's operation was inflicted a bodily injury on the victim.

[1] Article 5-9 (1) and (2) of the Aggravated Punishment Act / [2] Article 5-9 (2) of the Aggravated Punishment Act

Defendant

Defendant

Attorney A

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant does not pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 30,000 won into one day (Provided, That the fractional amount shall be one day).

The 79 days under detention prior to the rendering of this judgment shall be included in the period of detention in the workhouse.

Criminal facts

On September 8, 200, the Defendant received a summary order of KRW 300,000,000 as a violation of the Punishment of Violences, etc. Act at the Daegu District Court on September 8, 200, and the order became final and conclusive on October 17 of the same year;

At around 17:40 on August 8, 200, while drinking alcohol on the packing end of the operation of the victim (the 67 years of age) on the side B in Daegu-gu, Daegu-gu, the victim was injured, but was investigated by the victim's report, and sentenced to a fine of KRW 1,50,000 by the court, the victim was fluordding, and the victim was sentenced to a fine of KRW 1,50,000." In addition, the victim was fluding off the balth of the balth of the victim's balle, and the victim was flud, and the victim was fluding the balth of the balth of the victim's balle and the balth of the balth of the 2000-gu, and the victim

Summary of Evidence

1. Statement corresponding thereto made by the defendant in this court;

1. Statement corresponding thereto made by the witness in this court;

1. Each protocol of examination of the accused prepared by the prosecutor, which corresponds to this;

(1)each statement made by the Prosecutor against the victim, C, and the victim in the police preparation, in conformity therewith;

1.A statement that corresponds to the part and degree of the injury in the judgment of the victim in the draft of D D shall be consistent with the injury of the victim.

Judgment on Defendant’s argument

The Defendant asserts that he was in a state of mental disability under the influence of alcohol at the time of committing the instant crime, and according to the above evidence, it is acknowledged that the Defendant had dice a little amount of alcohol at the time of committing the instant crime, but it cannot be deemed that the Defendant did not have reached a state where the Defendant had a weak ability to discern things or make decisions due to the above drinking at the time of committing the instant crime, in light of the background of the instant crime and the circumstances after committing the crime. Therefore, the Defendant’s assertion is rejected

Application of Statutes

1. Selection of the relevant laws and punishments: Article 257 (1) of the Criminal Act (Selection of Punishment of Fines);

2. Punishment of concurrent crimes: the latter part of Article 37 and Article 39(1) of the Criminal Act ( space between the violation of the Punishment of Violence, etc. Act of the first head at the time of the sale and the judgment)

3. Attraction of a workhouse: Articles 70 and 69 (2) of the Criminal Act.

4. Pre-paid detention days: Article 57 of the Criminal Act.

Parts of innocence

Among the facts charged in this case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is that "the defendant injured the victim for the purpose of retaliation".

Therefore, as to whether retaliation was the purpose of retaliation at the time of committing the crime in the judgment of the defendant, Article 5-9 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes added the subjective element of the crime of bodily injury to protect the victim after reporting, which is a specific purpose related to the trial or investigation of a criminal case, to the elements of the crime of bodily injury, and its statutory punishment is more severe than the crime of bodily injury. The purpose of retaliation, which is an excessive and subjective illegal element, is clearly clear in the law, and its purpose is not a positive or conclusive recognition, and it is sufficient if there is an incomplete perception without any active desire or conclusive recognition. However, whether there was such purpose should be determined reasonably in light of social norms by comprehensively taking into account various circumstances such as the defendant's age, occupation, etc., motive and circumstance of the crime, method and method of the crime, details and mode of the act, personal relation with the victim, etc.

However, according to the above evidence, the defendant, who is a married woman without a certain occupation, was able to find out the following facts: (a) the defendant was under the influence of drinking around her time when he was under the influence of alcohol; (b) the defendant thought at the time that the defendant was under the influence of alcohol while drinking alcohol in the packaging end of the victim's operation that he was due to the victim; (c) the defendant was under the influence of the crime of this case; (d) the defendant did not prepare or plan the deadly weapons in advance; (e) the method of the crime of this case was extremely simple and simple; and (e) the degree of injury was extremely minor. In light of these various circumstances, the defendant's act of inflicting bodily injury on the victim cannot be deemed as a retaliation against the victim, and there is no evidence to acknowledge that there was no other purpose of retaliation against the defendant merely on the ground that "the defendant was under the influence of a fine because he was under the influence of a report" as stated in its reasoning.

Therefore, the above facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of facts constituting the crime. However, the above facts charged include the facts charged of the crime of bodily injury, and it does not impede the defendant's exercise of his right to defense even if it is acknowledged without the amendment procedure of indictment, so so long as the defendant is found guilty,

Judges Private Jin-Jin (Presiding Judge) Park Jong-Jin Park