(영문) 서울고등법원 춘천재판부 2016.1.29.선고 2015노152 판결

The court below's sentence imposed on the defendant and the person subject to the request to attach an attachment order (hereinafter referred to as "defendants") is unfair and unfair, and the defendant shall be sentenced to death in light of the nature of the crime in this case and the gravity of the result of the crime in this case.

2. Determination

(a) Criteria for sentencing death penalty;

The death penalty is a punishment against the poverty of the deprivation of human life itself, and is an extremely exceptional punishment in judicial system, which is a result of a literacy state, and should be sentenced only where objective circumstances to recognize that there exist special circumstances to justify it in light of the degree of responsibility for a crime and the timber of punishment are evident.

Therefore, in determining whether to choose the death penalty, it shall clearly state that all of the special circumstances, such as the offender’s age, occupation and career, character and conduct, intelligence, education level, growth process, family relation, criminal record, relationship with the victim, motive for the crime, existence of a prior plan, degree of preparation, means and method of preparation, the degree of cruel and bad faith, seriousness of the result, number of victims and damage assessment, the depth and attitude of the crime, the existence of reflect and reflectness, the degree of recovery of damage, and fear of re-offending, are thoroughly examined.

In order to do so, the court shall not only secure objective data to examine the Defendant’s subjective elements of sentencing, such as character and conduct, environment, intelligence, risk of recidivism, and possibility of improvement and edification, etc. Furthermore, the court shall have to conduct an in-depth hearing, such as a change in the mental and psychological state before and after the Defendant resolved, prepared for, and executed a crime, and reflect the results thereof in the sentencing (see, e.g., Supreme Court Decisions 2008Do9867, Feb. 26, 2009; 2003Do924, Jun. 13, 2003).

B. Conditions of sentencing

(1) The Defendant’s age, growth environment, occupation, career, character, criminal records, etc.

At the time of the instant crime, the Defendant was 41 years of age at the time of the instant crime, and the Defendant was born within the strong A0 to 4 women of Gangnam, and died in the age of 50 on August 24, 1979, and the Defendant was able to bring up 5 South Korea on the date of the instant crime (at that time, Defendant 6 years of age), Materns, etc., and was shotly brus among the siblingss.

The Defendant graduated from the Gangwon AO at Q and CM middle schools, and was unable to provide a secondary manager on the condition that he received accommodation between one year and six months at the time of entering CN high schools. From the first semester of the year, the Defendant served as a newspaper company accounting at the first husband, who met CO or lived with the first husband, and voluntarily retired from high schools. Meanwhile, at the time of attending a high school, the Defendant was assessed to have a strong service spirit, strongness, and thorough performance of his duties (Evidence No. 6135 of the evidence record).

In addition, the Defendant did not have any previous criminal records unless he was sentenced to a fine once due to a violation of the Road Traffic Act prior to the instant crime.

(2) Family relationship of the defendant

Around 18 years of age, the Defendant got divorced with his wife, and her child net, and the Defendant started living together with his wife by trying to do so. As to the pregnancy of his father CP, the Defendant married on October 16, 1995 (the age of 22 years at that time), but the Defendant was divorced on February 2, 199 as CO was not over several years, and the CO died from CO as CO was on February 2, 199.

On September 30, 199, the Defendant remarriedd with Q Q on September 30, 199 (the age of 26), and there was a baby who was in the fifth grade of the elementary school that was produced by the former wife. While the Defendant was pregnant, but was in an emergency operation for 7 months, and was in cerebrma 1,000. The Defendant was divorced from Q Q on February 9, 2007 (the age of 33 years at that time). Since around 2008, the Defendant was able to receive medical treatment due to two prolongeds, non-faceds, and disguised drugs. From September 2014 to September 1, 2014, the Defendant had been able to use the drug at least 1,000 alcohol level of 3 years and 3 years old alcohol level of 1,000 alcohol level of 1,6,000 alcohol level of 1,000 alcohol level of 3 years old.

After the Defendant divorced with Q Q, the Defendant returned to her friendly relationship with ASEAN in 2000. Around June 11, 2012, 2012, the Defendant moved to 102 Dongwon CTS 405. On April 29, 2014, the Defendant was a director of 103 Dong-dong 413 of the same apartment that is currently living in her country. At this point, the Defendant was living together with four children of A Q Q, who had been within the domestic relations from around 2013, as an elementary and secondary school.

From October 19, 2007, the Defendant received 1,082,860 won each month as a basic living beneficiary under the name of housing benefits, disability benefits of CRs, etc., and the Defendant paid a certain amount to the Defendant under the pretext of child support and living expenses.

(3) Relationship between the Defendant and the victims

(A) The victim D

The victim D was the first husband’s post-work division, and the defendant was in contact with CO, and the defendant again developed on an opportunity to communicate with CO around 2000. On two occasions, the defendant borrowed a total of KRW 6,300,000 and repaid part of D over two occasions, and on December 2014, the defendant had a debt of KRW 5,320,289 to him. In other words, D was provided with financial assistance, such as subsidizing KRW 4,00,000,000,000,000,000,000 won after the surgery, and 1.50,000,000,000 won, as well as on October 8, 2014, the defendant and D visited the insurance branches of LIG (LIG) and changed the beneficiary’s insurance proceeds from D without any insurance policy to KRW 100,000,000,000.

(B) Victims E and their children

On December 28, 2011, the Defendant was a director of a house managed by the Defendant’s office on December 28, 201, and was aware of the Plaintiff’s victim E and his/her children, and his/her children were engaged in activities together with “R” consisting of five parents in 2014, namely, the entry of his/her children into an elementary school such as CR. He/she was called “the Defendant”, and his/her children were very hick with each other to the extent that they were “the Defendant’s mother”.

The Defendant borrowed money several times from March 2013 to July 2014, and had a debt of approximately KRW 18,880,000 to his/her female on December of the same year. However, in the case of E, her husband AG was diagnosed as 6th class due to a traffic accident and lost income, it was difficult for the Defendant to receive KRW 1,30,000 per month under the name of a person subject to the basic living protection on the basis of the husband around May 23, 2013, as a person subject to the daily life support around May 23, 2013.

(4) The motive and circumstance of the instant crime

Around December 2014, the Defendant had a debt equivalent to approximately KRW 77,243,289 in total to many creditors, including the lending company D and E, and was obligated to pay KRW 2,912,90 in total every month. Around November 2014, the Defendant was urged to pay KRW 1,00,000 to the victim E, and was unable to pay the principal and KRW 5,000,000 in total, by murdering the victims of the occurrence of the dispute.

(5) Preparation and execution of crimes

(A) Crimes against the victim D

On December 26, 2014, the Defendant: (a) purchased about 2 liter of gasoline at the gas station on December 26, 2014, and (b) prescribed and received seven liter of “strokes” in the pathnary and members of the Gannando; and (c) purchased 1 disease, beer, etc. in Schlage and prepared goods to be used for committing the crime.

At around 14:00 on the same day, the Defendant visited D’s house to drink and talk at D’s house to drink together at D’s house, and put it into 3 times. The Defendant was unable to sleep due to d’s mind, and the Defendant was put into d’s body in order under the television line in inside and outside of 15:00 on the same day before the television line, and under the nearby contact line, and then d’s base. Accordingly, the Defendant attempted to kill D’s house by setting fire, but the Defendant was able to have D escape from D’s house, and the Defendant suffered injury, such as dimination, carbon, etc., which requires treatment for about 5 days.

(B) Crimes against victims E and their children

On December 29, 2014, the Defendant: (a) killed the victim E and his/her children to evade the obligation to E; (b) the husband, who was living separately, did not want to be related to the victim E, was selected as the date of the commission of the crime.

The Defendant purchased gasoline 1,815 liter at a pharmacy and prepared goods to be used for committing the crime by purchasing four drinking water of cancer and beverages, two beer cans, one beer, and one beer, etc. in the oil station.

At around 19:00 on the same day, the Defendant visited the E house with prepared articles to drink, drink drinking and drinking drinking water, drink, spath, etc. at the house, and put the victim L, N, the victim’s fire from the site to the victim’s quality of fire, and caused the victim to die at the hospital by making a fire at around 20 days on the same day on the doping that he puts a flab to his children. The victim lost his mind by flabing so that he puts a flab into a flab. At around 21:15 on the same day, the Defendant killed the victim’s house, M, the victim’s flab, and the victim’s flab from the site to the flab, and the victim’s flab to the flab on the same day.

(6) The circumstances after crimes

(A) The relation between the victim D

On the 29th day of the same month, the Defendant committed a crime at the victim D's house located in Gangnam-gu, 2014, and went to AO that he saw, again, he returned to D's house, and sought from neighboring residents about cU soldier's house, and provided care to his family members as if he had been aware of the fire, by doing his act as he had come to know of the fire. The Defendant continued to visit and nurse the hospital for 4 days from the following day, and continued to visit the hospital to take care of the patient, and purchased his driver's license and driver's license with the fire, and released him on the 30th day of the same month, and was discharged from his family members on the 30th day of the same month, but the Defendant was aware of his own fire, and was her husband's death. The Defendant committed a crime at all other than her husband's death.

(B) With respect to victims E and their children

On December 29, 2014, the Defendant committed a crime at the victim E’s house, and was able to immediately set up a vehicle at an nearby elementary school and waiting to drive away a fire-fighting vehicle leading to the place of crime, and led to structural activities.

On January 8, 2015, the Defendant was rescued at the scene of the instant crime by the police, and the victim E was willing to commit a usual suicide. On the day of the crime, the Defendant made a statement to the effect that her husband, who visited the house of the same victim on the day of the crime, is doubtful, or that her husband, who visited the house of the same victim on the day of the crime, is not guilty, or was involved in an accident by the electric board, and brought about a confusion in the investigation by asking the police officer in charge with telephone to ask the result of autopsy.

피고인은 범행 후 악단 활동을 같이 하던 다른 학부모들에게 자신이 마치 E의 채권자인 양 거짓말을 하고, E의 언니 AI에게 허위 차용증을 보여주면서 자신의 계좌 번호를 알려주기도 하는 등 검거 당일 오전까지도 유족들에게 허위 채권의 변제를 요 구하며 추가 사기 범행을 시도하였다. 나아가 주변 사람들에게 "시댁 식구들 슬퍼하는 기색 없어 더 화 나네요", "그런데 자살이라고 인터넷에 떴어요", "수사대가 집에 휘발 유 통도 있다고 했대요", "죽고 싶다는 말도 많이 했어요", "L 아빠가 이혼해도 애들 데려가면 끝까지 가서 죽여 버린다고 문자 왔다고 엄청 무서워하고 울었어요."(증거기 록 제6권 2504쪽)라는 등의 휴대전화 문자전언을 보내 E의 남편 AG를 진범으로 오인 하도록 거짓말을 하고, 범행 당일 자신의 딸 CP에게도 "L네 불 다 죽었다" 며 자신과는 전혀 상관없는 사고인 것처럼 휴대전화 문자전언을 보내고, 친오빠 에게는 "E의 하의 가 다 벗겨지고 상의가 일부 올라갔었다" 며 성폭력 사건을 의심하게 하여 허위 내용을 신고하게 하는 등 수사에 혼선을 빚는 언행을 하였다(증거기록 제4권 제1514쪽, 제5권 제2244쪽).

On the day following the crime, the defendant explained his efforts to rescue the victim E by leaving the phone to a remote scene of the crime, and later, the defendant took the body of the victim into custody hospital to take the body of the victim, and again made a statement to the bereaved family members and their neighbors in the place to go off the body or suggesting suicide, and even at the funeral hall, the defendant took the same action and wanting the bereaved family members and their neighbors.

Furthermore, in preparation for police investigations, the Defendant described himself as “EN U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S.S. S. S. S. S. S. S. S. S. S. S. S. S. S.S. S. S. S. S.S. S. S. S. S

(7) The defendant's intelligence, the result of the psychological evaluation and mental evaluation of the defendant, the risk of recidivism, etc.

The defendant's intelligence index was 90 years at the time of the third-year attendance at an elementary school and the first-year attendance at an elementary school (No. 6 of the evidence record No. 3109 of the evidence), and according to the mental appraisal statement of May 6, 2015 against the defendant prepared by CV of a medical specialist belonging to a public medical treatment and custody center in accordance with the court's entrustment of mental appraisal by the court of the original instance, the defendant's intelligence index currently belongs to the 85th average lower level (80 to 89), but there was no mental disorder symptoms that could be peculiar as of the appraisal date.

On the other hand, according to the notification of the results of the clinical examination conducted on February 2, 2015 by the Chief of the Supreme Prosecutors' Office Science Investigation Officer CW and Seoul National University Hospital Mental Health Professor CX as a professional investigation adviser, the Defendant may intentionally exaggeration his own mental pathology, and has a self-centered and dramatic and aggressive tendency. As a result of the evaluation of the risk of recidivism by adults (KORAS-G), the Defendant’s recidivism risk index falls under the total of 12 points. The result of the evaluation of the risk of recidivism by adults (PCL-R) falls under the middle point of “in the middle point of 20 points” (317, 318 pages of evidence record No. 617, 318).

However, according to the court's entrustment of mental appraisal of the defendant, a professional examiner who belongs to the department of mental health of the National University Hospital of the Republic of Korea prepared by CY, was unable to discover the main characteristics of the defendant's mental personality disorder (DSM-IV) or mental disorder (DSM-IV), or the main characteristics of the defendant's mental disorder (DSM-IV) with three points at the highest point (40 points).

(8) The extent of damage recovery and the will of the victim's bereaved family members;

The Defendant did not receive any tolerance from the victim or his bereaved family members, and the damage was also recovered.

(9) Whether the defendant reflects and is liable

The Defendant, while denying or concealing the crime itself and making a false statement in favor of himself, even though most of the motive and circumstances leading to the commission of the crime were led to the confession of the crime. In the end, the Defendant, by submitting a reflective statement that seems to have shown that he had shown that he had been able to repent of the crime. Meanwhile, according to the face-to-face meeting (No. 2276, 2298 of the Evidence Records, No. 5, No. 2298 of the Record), according to the Defendant’s statement on the face-to-face meeting of the Seocho Police Station in the detention room, the Defendant stated that “I would be able to reduce the punishment if I are in life.” However, if there was no other evidence to determine whether the Defendant continued to maintain the attitude of the Defendant, it is difficult to view the Defendant’s statement that “I would go beyond the prison as soon as I would go beyond the prison.”

Family members of the defendant and neighboring residents also want to lead the defendant, and they want to take care of the defendant.

C. Determination of sentencing

The act of recklessly infringing on the life of a person who is unable to recover from the dignity of human beings can not be used for any reason. It is an anti-social crime against which the defendant's act of taking life with heavy and dignity against the victim can be rational or justified by any defense. In particular, even under much more difficult circumstances than the defendant, it can be found that the parents who have contributed to and sacrificed for his child in a correct manner are difficult in our surrounding areas. As stated in the judgment of the court below, the defendant has imported more than 5 million won per month, and it was a large number of insurance policies in the future, and thus, it is difficult for the victim to take advantage of the circumstances that it was difficult for him to cancel, and thus, the defendant might have been able to commit such a crime, such as the victim's early rejection of funds, and thus, the defendant's act of causing severe harm to his/her own life, such as the victim's motive to commit an investigation and the need to ex officio exemption from punishment, as well as to make it difficult for him/her to do so.

On the other hand, however, the defendant had been married with her husband at a young age and sustained cerebral ties by supporting her children who suffered cerebral ties, etc., and continued to suffer serious drinking disorders for him/her before the crime of this case. While he/she provided false information during the investigation process and continued to commit a crime, he/she led to the confession of the crime only after objective evidence has been secured. However, from that to that to that of the first instance court, he/she seems to have committed all crimes, and even if he/she did not reach the level of self-defense, it is difficult to view that the defendant's attitude was merely a neighbor's attitude to commit a crime, in light of the contents and attitudes in court, and the content of the reflective statement submitted by the original court and the trial court, and thus, it is difficult to see that the defendant's attitude did not meet the standards of punishment by taking account of the following factors: the defendant's attitude cannot be viewed as having reached the majority's attitude of self-defense as well as that of his/her family members who did not meet the standards of the defendant's society.

In full view of the Defendant’s age, growth environment, occupation and career, educational degree, intelligence, personality and conduct, past conviction, family relation, relationship with victims, existence of a prior plan, degree of preparation for a crime, means and method of crime, depth and attitude after a crime, degree of damage recovery, concern about recidivism, reflectment and existence of liability, etc., it is difficult to say that even a person against the Defendant clearly exists the objective circumstance to determine that only the death penalty is an inevitable punishment. Of course, it is inevitable to recognize that there is a sufficiently light aspect of the prosecutor’s grounds for appeal that the Defendant should be punished by death, and it is not easy to say that the sentence of the judgment of the court below is too minor. However, this is a problem that our Criminal Act does not determine an appropriate punishment, such as death penalty and life imprisonment, and that it seems that life imprisonment is somewhat minor.

As a result, the defendant cannot be punished by the extreme punishment of death penalty, and as seen above, the punishment other than the death penalty under our legal system does not stipulate any more severe punishment than that of life imprisonment. Therefore, it is appropriate to impose an inevitable imprisonment for life on the defendant, and to have him/her correct his/her mistake by using his/her prison life in the state of isolation in society without setting a future period, and to have him/her live with the mind of committing the crime of deceiving the victims.

3. Judgment on the part of the claim for attachment order

If a prosecutor files an appeal against a defendant case, he/she shall be deemed to have filed an appeal against a request for attachment order pursuant to Article 9(8) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders. However, the prosecutor’s petition of appeal or the statement of reasons for appeal concerning the appeal does not state due diligence, and even upon examining the judgment of the court below, the reason for reversal of this part at his/her discretion cannot be found.

4. Conclusion

The prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 35 of the Act on the Security Surveillance and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that the appeal by the prosecutor is groundless.