2017No5324 Bodis, Violence

A

Both parties

Emotional forests (prosecutions) and stuffs (public trial)

Attorney Jin-jin (Korean National Assembly)

Daegu District Court Decision 2017 Godan1809 Decided November 30, 2017

oly 10, 201.2

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of the grounds for appeal;

A. Defendant

1) Public prosecution of this case is unlawful for the following reasons. Thus, public prosecution of this case must be dismissed.

① The indictment of this case does not properly specify the facts charged due to the descriptions of the processing facts.

② The instant public prosecution constitutes abuse of public prosecution power, which was instituted for the purpose of influencing the instant case brought by the Defendant under pressure by the Defendant.

2) misunderstanding of facts, incomplete deliberation, and misapprehension of legal principles

The lower court found the Defendant guilty of the instant facts charged by adopting and investigating evidence, such as CCTV video works, investigation reports (the CCTV image verification of the Daegu Employment Welfare Center), inquiry statement (Etypes), B, and D respective legal statements and statements. In so doing, the lower court erred by misapprehending the legal doctrine on admissibility of evidence, and by misapprehending the legal doctrine on admissibility of evidence, and by failing to exhaust all necessary deliberations, even though the remainder of the evidentiary materials are not recognized as the facts charged of the instant case.

3) Violation of law

The court below violated the Criminal Procedure Act order concerning the method of examination of witness, the method of examination of CCTV video works, etc., and committed unlawful acts such as arbitrary exercise of the right to command a lawsuit by deviating from the scope of discretion.

4) Unreasonable sentencing

The punishment sentenced by the court below (two years of suspended sentence in six months of imprisonment) is too unreasonable.

B. Prosecutor,

The sentence sentenced by the court below is too uneasible and unfair.

2. Determination

A. Judgment on the defendant's unlawful assertion of public prosecution

When the procedures for institution of public prosecution are null and void in violation of Acts, a judgment dismissing public prosecution shall be pronounced pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

Although the Defendant asserts that the indictment of this case was unlawful because the facts of processing are written in the indictment of this case, if the indictment contains any different contents from the facts, it cannot be said that the procedure of prosecution is not in violation of the provisions of the Act, just because it is not sufficient to exercise the right of defense of the Defendant, and thus, the Defendant’s assertion against this is without merit.

In addition, the argument that the prosecution of this case was instituted for an improper purpose is not acceptable as it is without merit.

B. Judgment on the defendant's misconception of facts and misapprehension of legal principles

1) As to CCTV videos taken by Daegu Employment Welfare Center, the Defendant asserts that the subject who voluntarily submitted the said video works is an employee of a building management company, and thus, there is a matter of violation of the Personal Information Protection Act, and the search and seizure procedure was conducted at night, and the subject is not a judicial police officer, but a judicial police officer, and the principal file is not sealed, and thus, constitutes illegally collected evidence.

However, since the above CCTV video works are secured not by seizure at Daegu Employment Welfare Center but by voluntary submission for criminal investigation, etc., the provisions or legal principles on seizure, such as Article 125 of the Criminal Procedure Act on the restriction of night execution of a seizure warrant, cannot be deemed as being applicable, and there is no circumstance to deem the contents of such CCTV video works changed from the time of voluntary submission to the time of submission of evidence. In light of the above, the above argument by the defendant is without merit.

2) The Defendant asserts that the fact-finding inquiry report (E-type foreign service) is inadmissible as hearsay evidence. However, the medical records, which are the result of fact-finding of E-type foreign service by the lower court, constitute ordinary documents prepared in the course of business and are naturally admissible as evidence under Article 315 subparagraph 2 of the Criminal Procedure Act, and this is also without merit.

3) The Defendant’s assertion disputing the admissibility of evidence duly admitted by the lower court, including the legal statement, etc. in B, cannot be accepted as independent.

4) Comprehensively taking account of the evidence duly adopted and examined by the lower court, such as B’s legal statement and inquiry report (E-type off) of the facts charged, the instant facts charged is sufficiently recognized. Determination on the Defendant’s assertion of violation of the statutes

The Defendant asserts to the effect that the lower court, without any reason, conducted a witness B or D examination in a state of installing shielding facilities, and conducted a leading examination, etc., and that the Defendant did not comply with the order of the Criminal Procedure Act concerning the examination of witness, thereby proceeding disadvantageous to the Defendant

Article 165-2 of the Criminal Procedure Act provides that where a witness makes a statement in confrontation with a defendant, etc. due to the nature of the crime, age of the witness, physical and mental condition, relationship with the defendant, and other circumstances, if deemed reasonable when he/she examines a witness who is deemed likely to substantially lose the peace of the mind at a psychological expense, he/she may install a shielding facility and examine the witness. In light of the circumstance of the occurrence of the case, the relationship between the defendant and the witness, the relationship between the defendant and the witness, the character and attitude of the defendant, and the contents of the legal statement of the above witness, etc., the above witness cannot be seen as unlawful measures of the court below, which conducted the examination procedure under the circumstances where the shielding facility was installed, on the ground that there is apprehension that the above witness may not make a proper statement due to fear that the defendant would be able

D. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

In a case where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

In full view of all the sentencing conditions, including the Defendant’s age, character and behavior, environment, occupation, and circumstances after the crime, the sentence imposed by the lower court is too heavy or unreasonable, in light of the following: (a) the Defendant did not appear to be against the Defendant while denying the crime; (b) there was a history of being punished twice for the same crime; (c) the victim was not able to obtain a license from the victim; and (d) the degree of injury suffered by the victim was not limited.

Conclusion

Since the appeal filed by the defendant and the prosecutor is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

The judges of the presiding judge;

Judge Full-time Reserve

Judges Noh Jeong-hwan

1) The grounds for appeal are limited to the statement in the statement of grounds for appeal submitted within the deadline for filing the statement of grounds for appeal.

All kinds of documents, such as a statement of reasons for appeal, submitted by the defendant after the appeal is filed, within the extent of supplement in case of supplemental appellate grounds.

making decisions.