2017Gohap1268 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Refence, etc.)

A

Kim Byung-Gyeong (Court Prosecution) (Court of Second Instance), Kim Jong-han (Court of Justice)

Attorney B (Korean National Assembly)

May 3, 2018

A defendant shall be punished by imprisonment with prison labor for up to six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment became final and conclusive. To order the defendant to provide community service for 80 hours.

Criminal facts

On May 22, 2017, the Defendant reported to the police and received a summary order of KRW 1 million as a crime of assault in Seoul Central District Court on June 12, 2017, when the victim was notified of the summary order of KRW 1 million due to a crime of assault, and subsequently requested formal trial on June 20, 2017 to the victim for revocation of the complaint against the assault case. However, when the victim was punished due to the failure to revoke the complaint, the victim was able to be punished due to a fine due to the revocation of the complaint, the victim was frightend with the victim.

피고인은 2017. 7. 21. 00:50경 피해자가 남자친구인 D의 집에 함께 있는 것을 알고 서울 관악구 F, 202호에 있는 D의 집으로 찾아가 문을 두드리며 문을 열라고 소리를 질렀고, D이 조금 늦게 문을 열어주자 그 집 안으로 들어가 피해자에게 "숨어있으면다 되는거냐, 니가 고소한 사건 때문에 벌금이 100만 원이 넘게 나왔는데 내가 왜 이걸 내야 되냐, 씨발년아", "내가 뭘 잘못했냐, 씨발년아. 병신 새끼야 내가 저번에 이사 왔을 때 너에게 고기를 사주고 했는데 보지가 헐하냐, 씨발년아."라고 욕설을 하다가 갑자기 손바닥으로 피해자의 뺨을 강하게 후려쳐 피해자를 바닥에 쓰러뜨렸다. 계속하여 피고인은 피해자에게 "씨발, 좆같은 년, 개같은 년, 왜 고소를 취소하지 않냐”고 욕설을 수회 반복하고, 피고인을 말리는 E 등을 뿌리친 뒤 방 안에 있던 철제 빨래건조대를 바닥에 쓰러져 있는 피해자에게 집어 던져 얼굴 부분을 가격하고, 잠시, 후 피해자가 일어서려고 하자 피해자에게 달려들며 발로 걷어차려고 하여 이를 피하던 피해자가 책상 모서리에 부딪히게 하였다.

As a result, the defendant assaulted the victim for the purpose of retaliation against the provision of investigation teams such as criminal complaints, statements or submission of data in connection with the investigation and trial of his criminal case.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness C and D;

1. Violence, damage, photograph and field photograph;

1. As to the residents and criminal records (A), six copies of the summary order, and the output of the case inquiry, respectively, and the application of Acts and subordinate statutes of one copy of the indictment;

1. Article applicable to criminal facts;

Article 5-9 (2) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 260 (1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Social service order;

Article 62-2 (1) of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

When the Defendant came to go through E, he would go to go to go to the victim. The fact that the Defendant was boomed with the victim, is recognized. However, the Defendant was booming the victim about the previous assault case, and the victim was blicking the victim without the blicker, and was not taken for the purpose of retaliation. Although it was true that the Defendant was blicking to the victim, there was no other blicking motive, such as the facts charged, and there was no other fact that the Defendant was blicking to the victim, and there was no other blicking to the victim.

2. Determination

In full view of the following facts and circumstances recognized as evidence duly adopted and investigated by this court, the defendant can be recognized as having abused the victim for the purpose of retaliation against the report.

A. The Defendant knew that the victim was in the house of D. On the day of the instant case, the victim and D entered the house at around 11:0 on July 20, 2017, when the police investigation was conducted on the day of the instant case, and at around 12:0:0, G entered the house with the Defendant, etc. Around 12:0:0:00, G entered the house. The Defendant stated that “I would find the house of D with the Defendant, and “I would like to look back because I would like to report the victim’s face, not in this court, but in I would like to look for the victim’s face.” However, it is difficult to obtain that it was difficult for many people to resist because I want to report the face of D.

B. The victim and D consistently stated in the investigative agency that "the defendant had been paid a fine upon the victim's complaint," and that "the victim took a serious bath, such as the charge, and tried to take the victim's fast scam, and attempted to take scam as soon as possible." Even according to the defendant's written statement of E and H, on the day of the case, the defendant and E did not have any other subject dialogue as well as demanding the victim to cancel the complaint. It is also acknowledged that the defendant did not cancel the victim's complaint, "the defendant did not cancel the victim's complaint," and that the defendant was scambling and scambling with the victim.

1. The grounds for sentencing: Imprisonment with prison labor for not less than six months but not more than 15 years;

2. Scope of recommendations based on the sentencing criteria: Imprisonment with prison labor for not less than four months but not more than one year and four months.

[Determination of Punishment] Violence Crimes of No. 7 (Assault for Purpose of Retaliatory)

[Special Escopic Persons] Where the degree of assault is minor (Type 1, 6, 7)

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment with prison labor for not less than four months, but not more than one year and four months;

3. Determination of sentence: The crime of this case for one year of suspended sentence for six months is committed by the defendant with the desire of the victim who is a minor for the purpose of retaliation against the defendant's reporting him/her to the police, and the nature of the crime is not good in light of the circumstances and content thereof. The defendant has been punished several times by a fine due to violent acts. Such factors are disadvantageous to the defendant.

However, it is difficult for the defendant to find the victim for the purpose of assaulting from the beginning, and it seems that the defendant committed the crime of this case somewhat contingently and contingently because the appraisal of the conversation while under the influence of alcohol was serious, and it is difficult to see that the degree of damage is serious.

In addition to the above circumstances, the defendant's age, character and conduct, intelligence and environment, relationship with the victim, motive, means and consequence of the crime, and the circumstances after the crime, the punishment as ordered shall be determined in consideration of all the sentencing conditions.

The presiding judge, the highest judge;

Judges Gin-type money

Judges Shin Jae-ho