(영문) 서울고등법원 2017.1.12. 선고 2016노3297 판결

The defendant and the requester for medical treatment and custody and the requester for attachment order and the prosecutor's appeal are all dismissed.

Reasons

1. Summary of grounds for appeal;

(a) A prosecutor;

The sentence (30 years of imprisonment) sentenced by the court below to the defendant and the person subject to medical treatment and custody and the person subject to a request for attachment order (hereinafter referred to as the "defendant") shall be too unhued and unfair.

(b) Defense counsel of the defendant;

(1) An insane;

The Defendant was in an insane condition at the time of committing the instant crime.

2) Unreasonable sentencing

The punishment sentenced by the court below is too unreasonable.

2. Determination

A. Part of the defendant's case

1) The defense counsel's assertion of defectiveness

According to the records, even though the defendant was in a state of mental disorder caused by mental illness, such as the loss of damage, etc. at the time of committing the crime of this case, considering all the circumstances such as the background leading to committing the crime of this case, the contents of the crime of this case, the means and method of the crime of this case, the circumstances after committing the crime of this case, the defendant's attitude to make statements in this court, and the result of mental appraisal against the defendant, it cannot be seen that the defendant was in a state of changing things or losing the ability to make decisions due to the above mental illness at the

2) Each assertion on unreasonable sentencing by the prosecutor and defense counsel

Based on the statutory penalty, the sentencing is a discretionary judgment that takes place within a reasonable and appropriate scope by comprehensively taking into account the matters that are the conditions for the sentencing prescribed in Article 51 of the Criminal Act, based on the statutory penalty. However, considering the unique area of the sentencing of the first instance that is respected under the trial-oriented principle and the principle of directness taken by our Criminal Procedure Act and the ex post facto core nature of the appellate court, the sentencing of the first instance court shall be determined by comprehensively taking into account the matters

It is reasonable to reverse the judgment of the first instance court that the determination of a punishment is unfair, only in cases where there are circumstances such as deemed to have been exceeded the reasonable scope of the discretion, or where it is deemed unfair to maintain the judgment of the first instance in light of the materials newly discovered in the course of the appellate court’s sentencing examination, etc. In the absence of such exceptional circumstances, it is desirable to respect the judgment of the first instance court (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015)

In this case, there is no change in the conditions of sentencing in the court below compared to the court below, and there is no change in the conditions of sentencing in the court below's "reasons of the court below's sentencing". In consideration of the sentencing conditions under Article 51 of the Criminal Act, which are shown in the records and arguments of this case, and the sentencing guidelines of the Supreme Court's sentencing committee, including, in particular, various factors of sentencing described in the column of "reason of the court below's sentencing", such as the seriousness of the crime of this case, the unspecifiedness of the crime of this case, the degree of social apprehension caused thereby, the plannedness of the crime, the existence of the defendant before the opening of the crime, the degree of risk of recidivism, and the degree of defendant's ability to assume responsibility, the court below's punishment against the defendant is deemed to have been sentenced to 30 years of imprisonment within the scope of the sentencing sentence reduced by

B. Part of the medical treatment and custody claim and attachment order claim

When a defendant and a public prosecutor file an appeal regarding a prosecuted case, the defendant and the public prosecutor are deemed to have filed an appeal regarding the request for medical treatment and custody and the request for attachment order pursuant to Article 14(2) of the former Medical Treatment and Custody Act (amended by Act No. 13525, Dec. 1, 2015) and Article 9(8) of the Act on Probation and Location Monitoring, Electronic Monitoring, etc. of Specific Criminal Offenders. However, even without stating the grounds for appeal regarding the request for medical treatment and custody and the request for attachment order in each written appeal or written appeal, the part regarding the request for medical treatment and custody and the request for attachment order in each written appeal or written appeal shall not be reversed.

3. Conclusion

Since all appeals filed by the defendant and the prosecutor are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act, Article 15(2) of the Medical Treatment and Custody Act, and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders. It is so decided as per Disposition.