(영문) 서울고등법원 2017.02.06 2016노3857 | 리걸엔진

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Reasons

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(영문) 서울고등법원 2017.02.06 2016노3857

폭행

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. In the event of the occurrence of the instant case by misunderstanding the facts and misapprehension of the legal principles, the victim tried to assault the Defendant, the Defendant extending out to the left hand to defend it, and the part of the Defendant’s hand was in contact with the victim’s chests, so there was no fact that the Defendant did not assault the victim.

Even if the defendant abuseds the victim,

Even if this is a means of resistance to protect the defendant from the attack of the victim, it is justified as a legitimate defense.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in the misunderstanding of facts and legal principles.

B. The sentence of the lower court’s unfair sentencing (an amount of KRW 500,000) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, 1) The following circumstances acknowledged by the lower court’s investigation, namely, the victim consistently stated from the investigative agency to the court of the lower court that he/she was pushed down the part of his/her own neck by having himself/herself sealed his/her own neck up to the court of the lower court, the Defendant also recognized that he/she contacted the part of the victim, and the Defendant was in a state of interest of the victim to the extent that he/she would have expressed the victim’s desire even during the dispatch of the police, can be sufficiently recognized at the time of the occurrence of the instant case by his/her hand.

In the crime of assault under Article 260(1) of the Criminal Act, the term “Assault” refers to the exercise of all tangible force against a person’s body (see Supreme Court Decision 90Do2153, Jan. 29, 191, etc.). Thus, as stated in the facts charged in this case, the Defendant’s act of assaulting the part of the victim’s body by hand constitutes the crime of assault.

2) The Defendant’s defense of a political party is identical to the grounds for appeal in the lower judgment.

참조조문

-형법 제260조 제1항

참조판례

-대법원 1991. 1. 29. 선고 90도2153 판결

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