2012 Gohap 532 Murder

2012 high-ranking 14 (Joint Medical Treatment and Custody)

Applicant for Custody

김ㅇㅇ ( 94 - 1 ), ㅇㅇ

Seoul Metropolitan Government Housing Guro

Standard place of registration

Red machines (prosecutions) and Gain-ju (Public trial)

Law Firm Law Firm, Attorney Kim Jin-kin

October 19, 2012

A defendant shall be punished by imprisonment for two years.

Provided, That the execution of the above sentence shall be suspended for three years from the date this judgment became final.

To order the defendant to be put on probation.

A seized knife (No. 1) shall be confiscated.

The medical treatment and custody claim of this case is dismissed.

Criminal History Office

The defendant is a person who lacks the ability to discern things or make decisions due to mental or physical disorder, such as normal disorder in division, specific impossibility or incomplete conditions, etc.

피고인은 2012. 6. 12. 12 : 30경 서울 구로구 ㅇㅇ 동 ㅇㅇ - ㅇㅇ 소재 ㅇㅇ고등학교 구내식당에서 위와 같이 심신장애로 인하여 사물을 변별할 능력이나 의사를 결정할 능력이 미약한 상태에서, 사소한 장난 끝에 피해자 이ㅇㅇ ( 17세 ) 로부터 머리를 맞자 화가 나 피해자를 살해하기로 마음먹었다 .

피고인은 곧바로 서울 구로구 ㅇㅇ로1길 ㅇㅇ - ㅇㅇ ㅇㅇㅇㅇ호에 있는 자신의 주거지에서 식칼 ( 칼날길이 19cm ) 을 가지고 돌아와 위 학교 4층 복도에 있던 피해자를 발견하고 위 식칼을 손에 들고 피해자의 왼쪽 가슴 부위를 1회 찌르는 등 피해자를 살해하려고 하였으나, 피고인의 담임교사 홍ㅇㅇ으로부터 제지당하는 바람에 피해자에게 약 3주간의 치료가 필요한 흉강 내로의 열린 상처가 있는 외상성 기흉 등의 상해를 가하는 데 그치는 등 그 뜻을 이루지 못하고 미수에 그쳤다 .

Summary of Evidence

1. Defendant's legal statement;

1. 김ㅇㅇ, 이ㅇㅇ, 홍○○에 대한 각 검찰 진술조서

1. 이ㅇㅇ에 대한 경찰 진술조서

1. Each investigation report (in relation to the preparation of a witness's statement, submission of the victim's opinion, submission of data submitted, explanation of the victim's mother's damage to his/her parents, and attachment of a mental appraisal report) and respective accompanying documents;

1. Each medical certificate and response by a doctor;

1. Photographs of seized articles;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 254 and 250(1) of the Criminal Act

1. Statutory mitigation;

Articles 10(2) and (1) and 55(1)3 of the Criminal Act.

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Suspension of execution;

Article 62(1) of the Criminal Act, Article 60(3) of the Juvenile Act.

1. Probation;

Article 62-2 of the Criminal Act

1. Confiscation;

The reason for sentencing under Article 48(1)1 of the Criminal Act / [the scope of applicable sentences] Imprisonment with prison labor for not less than one year and not less than three months but not more than seven years and not more than six months;

[Judgment of the Criminal Procedure Act] The crime of this case is committed by the Defendant on the ground that the Defendant got knife of the victim on the ground that the Defendant got knife from the victim, but is committed by attempted crimes by taking into account the following: (a) the nature of the crime is inferior and highly dangerous in light of the motive, means, and result of the crime; and (b) the victim seems to have suffered a huge mental shock and pain due to the crime of this case, it is necessary to put the Defendant on a strict punishment.

However, the execution of the punishment shall be suspended only once in consideration of the fact that the defendant appears to have committed the crime in this case in a state of mental disorder, the fact that his mistake is pened and reflected in depth, the victim does not want the punishment of the defendant, the fact that the defendant is a juvenile with no previous conviction, the fact that the defendant is a juvenile with his age, the character and conduct and environment of the defendant, and the circumstances after the crime, etc.

Judgment on a medical treatment and custody application

1. Summary of application for medical treatment and custody;

In a situation where a person lacks the ability to discern things or make decisions as stated in the judgment, the person who has committed a crime corresponding to imprisonment without prison labor or heavier punishment is required to receive treatment at the medical treatment and custody facility and is in danger of recidivism.

2. Determination:

A. The risk of repeating a crime, which is a requirement for medical treatment and custody, refers to a case where there is a probable probability that a person subject to protective custody will block the crime again in the future in the state of mental and physical disorder, and the existence of such danger shall be objectively determined by comprehensively assessing all the circumstances, including the contents of the crime in question, the degree of mental and physical disorder of the person subject to protective custody at the time of sentencing, the nature and difficulty of treatment, the degree of difficulty of treatment, whether the person subject to protective custody has an environment to be continuously treated in the future, and whether the person subject to protective custody is willing to prevent recidivism (Supreme Court Decision 200Do1908, 200Do62, Jul. 4, 200).

B. Based on the above legal principles, the Defendant committed the instant crime in a state that the Defendant had the record of having received treatment from around September 2008 due to constant disorder, etc., and that the Defendant committed the instant crime in a state that the Defendant lacks the ability to discern things or make decisions due to such mental or physical disorder.

However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court, namely, ① there is no record of committing the crime before the crime in this case, and the crime in this case does not appear to have been realized of violent inclinations; ② the parents of the petitioners for the custody want to directly treat the petitioners for the custody, ② the protection and treatment of the petitioners for the custody while wishing to do so; ③ the petitioners for the custody are in conflict with their mistakes, and there is a need to again refrain from committing these crimes; ④ the treatment of the petitioners for the custody in order to treat them and prevent recidivism, as well as the continuous interest and protection of their families are considered necessary in order to prevent recidivism. ⑤ The medical treatment and custody disposition has the nature of “free confinement disposition” in the facility for the protection and treatment of the petitioners for the mentally and physically handicapped, but it is not necessary to recognize the necessity of compulsory treatment and custody in light of the principle of proportionality if it is deemed that there is lack of sufficient evidence to acknowledge the necessity of compulsory treatment and custody in this case’s facility after considering the above circumstances and the need to protect them.

C. Thus, the claim for medical treatment and custody of this case is dismissed under the latter part of Article 12(1) of the Medical Treatment and Custody Act as it is without merit.

Judges Kim Yong-hoon

Judges Jeon Sung-sung

Judges Park Sung-Nam-