[1] The case where the appellate court can reverse the judgment of the first instance court on the credibility of the witness's statement

[2] Whether a joint principal offender who is a result of an aggravated aggravated crime is required to jointly establish a co-principal (negative), and in a case where several persons who committed a crime with the intent of injury inflict serious bodily injury and thereby result in the victim’s death, whether the remaining persons are liable for the death of bodily injury (affirmative in principle)

[1] Article 308 of the Criminal Procedure Act / [2] Articles 15(2), 30, and 259 of the Criminal Act

[1] Supreme Court Decision 2006Do494 Decided November 24, 2006 (Gong2007Sang, 96) Supreme Court Decision 2008Do7462 Decided January 30, 2009, Supreme Court Decision 2010Do9106 Decided November 11, 2010 / [2] Supreme Court Decision 93Do1674 Decided August 24, 1993 (Gong193Ha, 2682), Supreme Court Decision 2000Do745 Decided May 12, 200 (Gong200Ha, 1463)

Defendant

Defendant

Attorneys Cho Ho-ho et al.

Busan High Court (Chowon) Decision 2012No250 decided January 11, 2013

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on the violation of the trial-oriented principle, the purport of introducing a participatory trial, the misapprehension of legal principles as to evidence trial principle, and the mistake of facts

A. In light of the spirit of substantial direct cross-examination adopted by the Korean Criminal Procedure Act, an appellate court shall not reverse the first instance judgment on the sole ground that the first instance judgment on the credibility of a statement made by a witness of the first instance is different from that of the appellate court. However, there are special circumstances to deem that the first instance judgment on the credibility of a statement made by a witness of the first instance was clearly erroneous, or in exceptional cases where it is deemed significantly unreasonable to maintain the first instance judgment on the credibility of a statement made by a witness of the first instance court based on the results of the first instance examination and the results of additional evidence examination conducted until the closing of oral argument in the appellate court (see, e.g., Supreme Court Decisions 2006Do494, Nov. 24, 2006; 2008Do7462, Nov. 30, 2009). Meanwhile, in criminal proceedings conducted in the form of a participatory trial, the jury verdict and opinion of the first instance court does not have the right to participate in the lower court’s recommendation and recommendation of facts.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

The summary of the facts charged as to the death or injury among the facts charged of this case is that co-defendants conspired with the defendant and the court below to inflict bodily injury on the victim and caused the death. The defendant argued that the co-defendants of the court below committed a crime as to this part of the facts charged, and that he did not take part in the crime.

The first instance court affirmed the trial proceedings as a participatory trial, examined the witness of the co-defendant in the lower trial, and tried the jury's verdict, and determined that the statement of co-defendant in the lower court was not guilty on the grounds that it is doubtful about credibility and it is difficult to see that the facts charged were proven with no reasonable doubt. At the time, the jury made a verdict as to this part of the facts charged by majority because the jury did not reach a unanimous verdict, and there was an opinion that the jury was guilty of the facts charged with bodily injury, and the six jury was guilty only on the part of the violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.).

The court below held that the defendant, as well as the co-defendant of the court below, has credibility and the defendant's statement is not reliable, on the ground that he also participates in the joint exercise of violence by sharing his own roles against the victim, on the ground that the defendant, as well as the co-defendant of the court below, further questioning the police officer who was dispatched to the scene of crime for field identification, further questioning him as a witness, and the specific circumstances acknowledged by the evidence duly admitted by the court of first instance and the court below, such as the relationship between the defendant and the victim, etc. of this case, circumstances and damage situations after the occurrence of this case, circumstances after the occurrence of this case, the identity or consistency of the defendant and the co-defendant's statement in relation thereto, the objective circumstances discovered at the scene or at the scene, and whether the above statements are consistent with the above statements.

C. In light of the aforementioned legal principles, legal provisions, and records, the above determination by the court below is just. Contrary to the allegations in the grounds of appeal, there were no errors in violation of the court-oriented principle and the principle of substantial direct examination, in violation of the principle of trial-oriented principle and the principle of evidence judgment, or in violation of the purport of introducing a participatory trial, or in violation of

Meanwhile, Supreme Court Decision 2009Do14065 Decided March 25, 2010, which held the ground for appeal by the Defendant, was accepted by the first instance court and acquitted the Defendant of the facts charged. As such, one of the jurors acknowledges the facts charged of injury and death, and the rest of the jurors are different from the case in which the Defendant’s act of injury itself is recognized, and it is not appropriate to invoke this. Accordingly, contrary to the allegations in the grounds for appeal, the lower court did not err in the misapprehension of the Supreme Court precedents.

2. As to the ground of appeal on the likelihood of death in violation of the empirical rule

The co-principal of the crime of death resulting from bodily harm, which is an aggravated crime, is established when he/she wishes to jointly commit violence or any other act of bodily harm, and is not required to jointly take the result thereof. In cases where the death of a victim is caused by a serious injury to one of the persons who committed the crime of bodily harm, the remaining persons cannot be exempted from liability for the crime of death unless it is possible to anticipate the result of death (see Supreme Court Decision 200Do745 delivered on May 12, 200, etc.).

Examining these legal principles in light of the first instance court and the evidence duly admitted by the lower court, it is reasonable that the lower court also could have sufficiently predicted that the Defendant might cause the death of the victim if it was erroneous in the process of causing the death of the victim due to the following reasons: (a) the Defendant’s smell lid was prices several times until the victim’s lid was faced and the disease was broken; (b) the Defendant continued to commit the act of repeating or threatening the victim’s head head by using excessive and knife that is a deadly weapon; (c) the lower court did not restrain Co-Defendant 1’s report to cut the same with a knife; and (d) the part of the victim’s injury was extended to a telegraph, and the degree of injury was extremely serious, and there was no error of finding the possibility of predicting the result of the death by violating the empirical rules, contrary to what is alleged in the grounds of appeal.

3. As to the grounds of appeal on guaranteeing the defendant's right to defense in sentencing

Since Article 51 of the Criminal Act, which provides for the conditions for sentencing, is interpreted to be subject to the discretion of the court with regard to the determination of punishment widely, the argument that the fact-finding court erreds the facts on the basis of the sentencing or did not properly examine the circumstances which are the conditions for sentencing, is not a legitimate ground for appeal, unless the appellate court adjudicates on the grounds of appeal as to the propriety of the determination of punishment in a case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years pursuant to Article 383 subparag. 4 of the Criminal Procedure Act (see Supreme Court Decision 2008Do1816, May 29, 2008, etc.).

The argument in the grounds of appeal that the defendant should have guaranteed his/her right to defense by stating that he/she did not at all assert the grounds of appeal regarding sentencing, is merely an assertion that he/she did not properly examine the circumstances attached to sentencing. Thus, this does not constitute a legitimate ground of appeal in this case where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has not been sentenced. Furthermore, even if examining the records in light of the records, the court below did not err by failing to guarantee the defendant's right to defense as alleged in the grounds

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)