(영문) 대전지방법원 2015.03.12 2014노3540 | 리걸엔진

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(영문) 대전지방법원 2015.03.12 2014노3540

폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of one year and two months.

Reasons

1. Summary of grounds for appeal;

A. The Defendant was under the influence of alcohol at the time of committing the instant crime, and was in a state of mental disability.

B. The sentence of unfair sentencing (one year and six months of imprisonment) by the court below is too unreasonable.

2. Determination

A. In general, when determining whether to mitigate alcohol to the Defendant’s assertion of mental and physical disorder, the following should be comprehensively taken into account: (a) the Defendant’s average volume of alcohol at the time of the crime; (b) the type and quantity of alcohol at the time of the crime; (c) the motive or cause of the crime; (d) the background and means of the crime; (e) the Defendant’s attitude before and after the crime; (e) whether the crime was committed; (e) whether the Defendant’s attitude was committed to destroy evidence related to the crime; (e) whether the crime was committed and the situation before and after the crime was committed; (e) the Defendant’

(See Supreme Court Decision 2002Do5109 Decided November 8, 2002). Fully considering the following circumstances revealed by the evidence duly adopted and examined by the court below, i.e., ① there is no objective evidence to recognize the accurate amount of drinking alcohol at the time of the instant crime, making it difficult to determine the amount of drinking and the level of drinking by the Defendant’s statement only because the Defendant did not have any objective material to determine the exact amount of drinking alcohol; ② the Defendant’s statement was made after the process of the crime and the immediately following the Defendant’s act (at the site of the Defendant’s transfer to the victim, the Defendant immediately went to the victim; and thereafter, the Defendant again went to the victim at the same time as the victim’s house), and it is difficult to see that the Defendant was under the influence of drinking at the time of the instant crime, it does not seem that the Defendant had the ability to distinguish things or make decisions under the influence of alcohol at that time.

This part of the defendant's assertion is without merit.

B. The instant crime on the assertion of unfair sentencing is a shoulder, which is a dangerous thing for the Defendant.

참조판례

-대법원 2002. 11. 8. 선고 2002도5109 판결

유사 판례

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