A crime recognized as a violation of the Punishment of Violences, etc. Act (Habitual Injury)

Violation of the Punishment of Violences, etc. Act (Habitual Violence), breadth

Violation of the Punishment of Violence, etc. Act (the name of a crime recognized as a habitual assault);

Violation of the Punishment of Violences, etc. Act (Habitual Violence) and violence

Violation of the Act on the Punishment, etc. of Specific Crimes (Intimidations, Deadly Weapons, etc.) and Assaults (Intimidation)

Violation of the Punishment of Violences, etc. Act (Habitual Public Service)

(B) obstruction of official duties, obstruction of performance of duties, act of violence, etc.

Violation of the Punishment Act (Habitual Bribery)

A

Defendant

Cho Jong-chul, Park Byung-hee (Court of Second Instance), Cho Byung-hee (Court of Second Instance)

Attorney AD (National Ship)

Seoul Southern District Court Decision 2013Da1522, 2421 (Consolidated) Decided October 1, 2013

January 23, 2014

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

The number 1 (one knife for portable use) of the seized list shall be confiscated from the accused.

1. Summary of grounds for appeal;

A. Error of mistake

(1) The facts of the crime No. 1-A at the time of the original adjudication are the fact that the Defendant flabbling the victim E, but there is no fact that the Defendant scam of the victim E and F, as stated in this part of the facts charged. However, without the criminal intent of assault, the Defendant contacted the victim’s scam on his hand.

(2) Criminal facts No. 1-b. at the time of original adjudication

Since the Defendant only committed an act of saveing the victim H’s head that was attached to the end of the debt, it cannot be said that there was a force corresponding to the assault.

(3) Criminal facts No. 1-C. at the time of original adjudication

While the victim J is passing through the Defendant’s surroundings, the Defendant was able to take a hump while taking a hump as a great level of care to give bad words to the Defendant, the Defendant did not see the face of the victimJ as stated in this part of the facts charged.

(4) Criminal facts of the original trial

As stated in this part of the facts charged, the Defendant did not commit an injury by assaulting the victim L, and only was arrested when he was imprisoned in the surrounding park at the time.

(5) Criminal facts of the original trial

As stated in this part of the facts charged, the Defendant did not have expressed a abusive or a knife against the victim 0, P and Q, as stated in this part of the facts charged.

(5) 원심판시 범죄사실 제4항 피고인이 피해자 S의 머리를 손가락으로 툭 친 정도에 불과하고, 특별히 피해자 S에게 겁을 준 사실이 없을 뿐만 아니라, 지갑을 갈취할 의도도 없었다.

(6) At the time of the original trial, Paragraph (5) of the criminal facts stated in this part of the facts charged, there was a fact that the defendant had a warning at the time and place of this part of the facts charged, but his awareness is not the victim V, and the awareness that the defendant was assaulted by the defendant was not during his official duties

(7) Nevertheless, the lower court convicted the Defendant of each of the above facts charged, and the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

Even if not, the sentence imposed by the court below (two years and six months of imprisonment) is too unreasonable.

2. Determination

A. Ex officio determination

B. Article 2(1)3 of the Punishment of Violences, etc. Act, Article 350 of the Criminal Act, Articles 3(1), 2(1)1 of the Punishment of Violences, etc. Act, Articles 283(1), 136(1), 40, 37, 38, and 48(1) of the Criminal Act, and Article 283(1) of the Criminal Act, Article 283(1), 283(1), 136(1), 47, 38, and 48(1) of the Criminal Act are applicable to the defendant's appeal decision. The court below's decision is no longer maintained since each of the facts charged in this case was modified by this court to permit it. However, despite the above amendment of indictment, the defendant and his defense counsel's assertion that the above amendment of indictment is still subject to a trial under the following paragraph.

B. Judgment of mistake of mistake

According to the evidence duly adopted and examined by the court below and the witness AE's statement at the trial court, it can be sufficiently recognized that each crime of the defendant is committed, such as the statement in paragraphs 1 through 5 of the crime, at the time of original trial. Therefore, the defendant and his defense counsel's assertion of mistake of facts is without merit

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant and his defense counsel's assertion of mistake of facts, since there is no ground for reversal of facts against the defendant and his defense counsel as seen earlier, and the judgment below is reversed and it is again decided as follows.

【Discretionary Judgment】

Criminal facts

On August 26, 2005, the Defendant was sentenced to imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (a punishment of eight months and two years of suspension of execution for the crime of common destruction and damage at night) and a fine of one hundred and fifty thousand won for the crime of bodily injury on March 20, 209, and sentenced to one year and six months of imprisonment and two years of suspension of execution for the crime of violation of the Punishment of Violences, etc. Act (a violation of the Act on the Punishment of Violences, etc. on May 15, 2009). On January 2, 2012, the Defendant was sentenced to a summary order of five hundred and fifty thousand won for the crime of causing property damage.

1. Violation of the Punishment of Violences, etc. Act and obstruction of the performance of official duties;

(a) Violence;

(1) On April 27, 2013, at around 23:20, the Defendant used the victim E and the victim E in front of the “D” restaurant located in Gangseo-gu Seoul Metropolitan Government, “I am out of her gate, her gate?” In his hand, the Defendant dumpeded the victim E’s blick, her blick, and her blicked the victim E’s blick at once, and her blicked the victim F’s blick at once.

(2) Around 23:00 on April 28, 2013, the Defendant thought that the victim H was found and a minor was cremationd, and the Defendant habitually assaulted the victim on the part of the victim, stating that the victim “I am kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't

(3) On May 8, 2013, at around 13:45, the Defendant: (a) stated that the victim J, who was going to the front of the Guro-gu Seoul Metropolitan Government I Apartment Complex Management Office, was “the same year as bit bit bit bit bit bit bit bit bit of bitch bitch bit bitch,” and habitually abused the victim’s face at one time due to drinking.

(b) Injury;

(1) On May 5, 2013, at around 04:45, the Defendant: (a) discovered the victim L in front of the ‘convalescent hospital’ located in K in Gangseo-gu Seoul Metropolitan Government, without any justifiable reason, assaulted the victim’s neck; (b) took part of the victim’s face due to drinking and growth; and (c) took part of the victim’s booms, such as drinking and singinging away from the ground, and flading the victim into several times, and inflicted bodily injury on the victim habitually, by going to an internal flag where the victim needs medical treatment for about 10 days.

(2) On July 7, 2013, 14. 19:30, the Defendant habitually injured the victim by opening the door of his own ward from 4 to 3 rooms in order to arrange the completion of the disciplinary confinement by the victim W, who was traveling in the third part of the 8nd floor of the Seoul Southern-do, Seoul, Guro-gu, Seoul, to the third part of the 8nd floor of the 8nd floor in Guro-gu, Seoul, to the effect that the victim W had a quantitative boom and had a two-way face of the victim to the right side of the victim three times with the right side of the victim with the upper part of the victim's blue and kne in one time with the part of the victim's left face at one time and having 0.5 cm and 1 cm on the right side of the treatment days, respectively, and making the victim wear the part on the right side and the right side of the flue.

(c) Injury and obstruction of performance of official duties;

On May 13, 2013, at around 07:10, the Defendant: (a) discovered a light-line V belonging to the Seoul Gangseo-gu Seoul Metropolitan Government Police Station security patrol unit, which was in motion to perform traffic control service on the front side of the ‘U restaurant' located in Gangseo-gu Seoul Metropolitan Government, and (b) changed the drinking water and the horse with cash of KRW 3,00,000; (c) however, upon the refusal of this, the Defendant committed assault to assault to interfere with legitimate performance of duties concerning the traffic control of V, and at the same time, had the victim V suffer approximately a week of medical treatment and open platform.

(d) Magion;

피고인은 2013. 5. 10. 07:40경 서울 강서구 R건물 앞 버스정류장에서 버스를 기다리고 있던 피해자 S(16세)에게 다가가 주먹으로 피해자의 머리를 1회 때리며 "학생증을 보여달라"라고 말하고, 주변 학생들이 이를 지켜보자 "뭘 봐 이년들아, 학교에나 가"라고 말하였다. 이에 피해자가 지갑을 꺼내 학생증을 보여주려고 하자 피고인은 지갑을 가져가 "지갑 예쁘다, 얼마냐, 나한테 팔아라, 계좌번호 불러달라" 라고 말하여 겁을 먹은 피해자로부터 "돈은 됐으니 그냥 가지세요"라는 말을 들었다.

The Defendant habitually aided the victim, and received one lock at a market price of at least 10,000 won from the victim who frightened the victim.

2. Violation of the Punishment of Violences, etc. Act (Intimidation against groups, deadly weapons, etc.);

At around 13:30 on May 5, 2013, the defendant discovered the victim's 0 (16 years old), victim P (17 years old), and victim Q Q (17 years old), and threatened the victim 0 with the victim's "whether or not there is a male-friendly relationship," the victim P and the victim Q should not be seen as a male-friendly relationship, and the victim P and Q should not speak, the victim's multi-use knife, which is a dangerous object in possession, is changed into a knife in a knife," and the victim's knife would be changed into a knife.

Summary of Evidence

The summary of the evidence of the above crime is as follows, except for the addition of 1.1. witness AE's oral statement in the summary of the evidence of the original judgment to '1.1. witness AE', and such addition is the same as that of the original judgment. Thus, it is cited in accordance with

Application of Statutes

1. Article applicable to criminal facts;

Article 2(1)3 of the Punishment of Violences, etc. Act, Article 350 of the Criminal Act (including habitual assault, habitual injury, and habitual violence), Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, Article 283(1) of the Criminal Act, Article 136(1) of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Habitual Intimidation) and the crimes of obstruction of the performance of official duties, and the crimes of violation of the Punishment of Violences, etc. Act (a violation of the Punishment of Violences, etc. Act) shall be mutually committed.

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Mitigation of vagabonds;

Articles 53 and 55(1)3 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

As seen earlier, it is reasonable to strictly punish the defendant in light of the fact that even though the defendant was fully convicted of each of the facts charged in this case against the defendant, the defendant committed each of the crimes in this case in spite of several times, despite the fact that the defendant was punished for the same kind of crime, and the defendant's records or the circumstances leading to each of the crimes in this case are highly high risk of recidivism in light of the defendant's criminal records or the contents of each of the crimes in this case. However, it is reasonable to strictly punish the defendant: Provided, That the victim W et al. agreed with the victim W, deposit 50,000 won for the victim V, deposit 500,000 won for the victim V, and appears to be not adequate to the defendant's health condition, and other various circumstances that form the conditions for the arguments in this case and the sentencing as shown in the records, such as the defendant's age, character,

Judgment of the presiding judge

Judge authorized only for the judge

Judges Yoon Jae-nam