2015No2176 homicide, dead hand, dead body abandonment

A

Defendant and Prosecutor

He/she shall file a prosecution against his/her soldiers, Kim Jong-chul (Trial).

Attorney BT (National Ship)

Suwon District Court Decision 2015 Gohap92 decided July 10, 2015

December 29, 2015

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) Mental disorders

At the time of the instant crime, the Defendant had weak ability to discern things or make decisions due to the fact that he was unable to do so during the mold or locking.

2) Unreasonable sentencing

The punishment sentenced by the first instance court (the imprisonment of 30 years, confiscation) is too unreasonable.

(b) Prosecutors;

It is unfair that the sentence sentenced by the first instance court is too uneasible.

2. Judgment as to the defendant's mental disorder

A. Judgment of the first instance court (with respect to the destruction and damage of a human body)

The first instance court determined that: (a) the Defendant could not be deemed to have in a state of lacking ability to discern things or make decisions due to mental or physical disorder at the time of committing the crime of destruction of the body of this case, taking into account the following circumstances acknowledged by the evidence duly adopted and investigated: (i) the Defendant stated in the investigative agency in detail the details of the crime of destruction of the body; (ii) the Defendant appears to have exercised considerable force in order to block the body of the victim into 14 parts by using knife and hand; and (iii) the Defendant appears to have sufficiently acted to end up 2 hours; and (iv) other detailed methods of the crime of destruction of the body of this case and the Defendant’s act committed before and after the crime of destruction of the body of this case.

B. Judgment of the court below

In addition to the above circumstances revealed by the first instance court and the trial court, the following circumstances acknowledged by the evidence duly adopted and investigated by the first instance court and the trial court, (1) the defendant physically memoryed and stated at an investigative agency about the background, method, relationship with the victim, etc. of the crime of this case; (2) the crime of destroying and damaging the body of this case and the crime of abandonment of the body of this case was committed on or after the date when the victim was killed; and (3) the party appraiser BU prepared a written appraisal against the defendant; and (3) the defendant is deemed to have had the ability to distinguish objects at the time of the crime of this case, and had the ability to make a decision on it." In full view of the above circumstances, it cannot be deemed that the defendant had a weak ability to discern things at the time of the crime of this case. Accordingly, the defendant's assertion of mental and physical disability is without merit.

3. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

A. Relevant legal principles

In light of the fact that the death penalty is a very cold punishment that deprives the human life itself of the original state and that it is extremely exceptional punishment that can be presented by the dual judicial system of the country of sentence, the sentence of death penalty should be allowed only when there is an objective circumstance clearly that can be justified in light of the degree of responsibility for the crime and the purpose of punishment. Accordingly, in sentencing the death penalty, the matters provided for in Article 51 of the Criminal Act are among the matters provided for in Article 51 of the Criminal Act.

In light of the above special circumstances, the death penalty shall be determined only after thoroughly considering the following: (a) the offender’s age, occupation and career, character and behavior, intelligence, education degree, growth process, family relation, existence of a previous offense, relationship with the victim, motive for the crime, existence of a prior plan, means and method of preparation, degree of cruel and maliciousness, seriousness of the result, the number and attitude of the victim after the crime; (b) the depth and attitude of the victim after the crime; (c) the degree of the damage recovery; and (d) concerns over re-offending; and (e) the court shall decide whether to choose the death penalty only after clearly considering the following special circumstances. To this end, the court shall secure objective materials to examine the character and behavior, environment, intelligence, risk of re-offending, possibility of improvement and edification, etc., which are the subjective sentencing factors of the defendant, and examine whether to select the death penalty by taking account of such objective materials as the victim’s motive, degree of preparation, means and method, degree of seriousness of the result; and (e) the mental or mental change in the defendant’s before and after the crime (see, 203).

B. The judgment of this Court

1) Progress of sentencing hearing

In the first instance trial, the prosecutor filed an appeal with the purport that the sentence of the first instance court, which sentenced the Defendant to 30 years of imprisonment, is too weak and that the Defendant is also subject to death penalty in the trial. Accordingly, in order to determine whether the sentencing of the first instance court is to be determined by the above legal doctrine, it is necessary to consider it as having been based on expert opinions in relevant fields, such as mental medicine and psychology, regarding the changes in the Defendant’s mental condition or psychological condition before and after the instant crime, etc., and requested a professor of BV University psychological department BW to assess the level of inter-copia through PCL-R, and a professor of BX Brain brain Convergence Science Research Institute BU to examine brain image.

2) Major sentencing conditions

A) The Defendant’s age, occupation and career, growth process, education level, family relationship, etc.

(1) On March 1968, the Defendant was born on the same day under the parent chain, who is engaged in agriculture in the Chinese roadside. The Defendant was born on the second day from the parent chain in the elementary school. The Defendant was serving as the head of the axis in the elementary school.

School life was conducted in the house of the branch of the school at the time of the school, and in the first year of the high school, the death of the father was difficult for the family life and the middle retirement was made difficult.

(2) Since then, the Defendant is a production worker of a branch company, and a worker at a construction site. From around 194 to around 7 years, the Defendant was married with the victim by the introduction of a branch company around 1995. The Defendant lost money by making a living without a certain occupation and making a multiple series of works after leaving his work in around 2001. The Defendant came into Korea in 2009 and went into Korea for three months at construction site number, and went into Korea for three months at construction site number, and came to work at one place after moving to the manufacturing company located at the Sistitu.

(3) Around 2012, the Defendant had access to the casino, which was 7-8 times a month, to the riverland, hotel casino, etc., and had all the money left far far, and continued to be stuffed even after the victim entered the casino on July 2013.

(4) At the time of the investigation into the judgment of the political party, the Defendant sent a monthly living cost to the mother and her children living in China, and expressed the son’s patriotism, such as visiting her children after the instant crime, and speaking her with the view of the view of the view of the view of the view of the view of the view of the view of the view of the view of the view of the original network, and speaking her with the view of the sensitive age.

(5) After entering the Republic of Korea, the Defendant entered the Republic of Korea, and there was no neighbor who did not have a close contact with the natives, and there was no volunteer who had been working for a long time, but who did not have a friendly employee.

(6) The victim received an operation due to a heart disease after her child birth and received treatment due to mental illness from around 2005 in 2005. According to the appraiser BU’s mental and physical appraisal report, the victim could have shown symptoms of stimulative disorder and there is a doubt that stimulative depression is doubtful. The victim, upon entering the Republic of Korea, entered the Republic of Korea while receiving treatment for one month from a stimule who is in the creative site, was hospitalized into China and was hospitalized into a stimulative hospital.

B) Criminal Power

In addition to the crime of this case, the defendant has no record of punishment in Korea, and according to the defendant's statement, there is no record of punishment in China.

C) The motive for committing the instant crime

From around 2012 to 2014, the Defendant was sprinked most of monthly wage, and from around 2014, the victim was sprinked with money and brought about disputes frequently with the victim and money. On March 2015, 2015, children in China had experienced uneasiness, such as gathering money and stopping of gambling. Of these, the Defendant was unable to take part on the day on which the instant crime was committed, but it was difficult for the Defendant to take part in diving, but when the Defendant was unable to interfere with and refund water by telephone, the victim, who was suffering from mental disorder, was sprinked with the Defendant’s self-defluence, and the Defendant did not come up with the instant crime by gathering money after gathering money from the bank.

D) The depth and attitude after the crime

After murdering the victim, the Defendant appeared to work at the workplace as in the usual book in order to conceal his crime, and stated that the circumstances leading up to the destruction of the victim’s body were not to cause damage to the house owner or that the expenses for cremation were borne.

While the Defendant acknowledges all of his criminal acts from the investigative agency to the trial of the party, the Defendant took the attitude of demanding the victim to use his letter and misunderstanding his wrongs, the Defendant took the attitude to mitigate his responsibility by taking the cause of the instant criminal act into account the victim’s mistake.

E) Treatment power;

Before entering the Republic of Korea in 2009, the Defendant received both medical treatment and care, and the Defendant, on his own initiative, was given the symptoms showing a psychiatrist, uneasy and lockedly, and was given the doctor’s guidance on the life of seafarers for a long time from the doctor at the time.

F) The gravity of recidivism, the mental condition, psychological condition, etc. of the defendant

(1) As a result of the evaluation of the level of PCL-R of appraiser BW, it was found that the Defendant’s total score was 17.9 points.

The PC-R scores are 0 to 40 points. At present, the Ministry of Justice uses PCL-R total points 25 points as the base point of high-risk co-ratis, and the 17.9 point that is the Defendant’s PC-R original point of PC-R is difficult to be considered as high-risk co-ratis even after considering the measurement error (±3). The Defendant’s PCL-R main point was found to be 5 points, 6 points, living style 6 points, anti-sociality were 1.2 points, and on the basis of the evaluation point, the Defendant showed positive self-satis and satis in an interview focused on the increase management, and the Defendant showed a appearance that lacks control over impulses related to gambling, and the Defendant did not take into account the fact that there were relatively high-risk co-ratis in terms of his life-related shock behavior, but did not take into account the fact that there was a lack of self-satisonism and responsibilities.

The defendant's PC-R scores show an intermediate risk, and even if the defendant's PC-R scores are not diagnosed as a 's 's 's 's 's 's 's 's 's 's 's 's 's 's '' achievement', the risk of the defendant's 's 's 's 's 's 's 's '' and 's 's 's 's achievement' can vary depending on the defendant's economic situation, education background, mental health and 's 's mental disorder', and previous 's records of living. These evaluation results

(2) The result of a mental and physical appraisal through a brain image test by an appraiser BU

The defendant is currently suffering from a major depression, and there is a symptoms of stress aftermathic stress caused by the depression after this case, but he/she has a gambling disorder (gambling addiction) although he/she made a statement that he/she is suffering from recovery.

Although it is possible for the Defendant to have shocked brain with a group of 10 minutes in high school, but it shows normal vision as a result of brain image inspection, it shows a normal range of scores. In the overall recognition function test, it shows a low level of scores compared to that of South Korea Mali-gun and South Korea Mali-gun, but it shows a low reliability in the prosecutor. Although it is a favorable strategy to select ‘mality' in every 20th game from functional brain Mali-malty (FMI), it is difficult for the Defendant to select ‘mality' as well as every 20th game from the functional brain Mali-malty (FMI), it is difficult for the Defendant to accurately select 20th, which was the ability to be aware of about the degree of 10 minutes in high school, and it is also difficult for him to have a high level of dynamic and decision-making.Although it is difficult for him to predict the standard of diagnosis of me, it is not possible for him to have a high level of diagnosis or decision-making.

G) The extent of the victim’s bereaved family members’ damage assessment and damage recovery

The bereaved family members, including the children of the victim, were suffering from considerable mental shock due to the death of the victim. Nevertheless, the Defendant did not agree with the bereaved family members of the victim until now, or did not take any particular measures to recover the damage.

3) The judgment of this Court

The crime of this case is also very serious in consequence of the crime in that the defendant prices the body of the victim who is himself/herself and his/her wife at his/her string, strokes the body of the victim with the intent to destroy his/her body by hand, and abandons the body of the victim on rivers, sea, and on the rooftop of the building, and as long as the method is harsh and cruel, and as long as it cannot be altered what is, the result of the crime is very serious. In particular, the defendant's act of abandoning the body of the victim on rivers, sea, rooftop of the building, etc. by knifeing the body of the victim with many parts of the crime of this case is very cruel, it cannot be seen that there was no minimum respect for the body of the victim, and it constitutes a crime that seriously undermines our moral sense and sentiments. Moreover, the defendant did not suffer from mental harm to the victim, including the victim's emotional distress, even after murdering the victim, and it is hard to recover from our society due to the lack of mental fear and fear of the victim.

그러나 다른 한편으로 피고인이 법률상 심신미약의 정도는 아니라 할지라도 주요. 우울 장애, 과거 도박 장애 등의 정신적 장애를 앓고 있었고, 도박으로 피해자의 수입을 포함하여 가족 전체 수입의 대부분을 탕진한 상황에서 평소 양극성장애의 증상을 보이던 피해자로부터 당장 은행에 가서 예금 잔고를 확인해 보자는 다그침을 받게 되자 야근을 마치고 돌아와 심신이 피로한 상태에서 우발적으로 살인 범행을 저지른 것으로 보이는 점, 피고인이 피해자를 살해한 것에 그치지 않고 더 나아가 회칼로 피해자의 사체를 절단하였는바, 위와 같은 사체손괴의 범행은 더할 나위 없이 잔혹하고 엽기적이라 할 것이지만 이는 엄연히 피해자가 사망한 이후에 그 죄증을 인멸하기 위한 의도를 가지고 피해자의 사체를 대상으로 한 범행이어서 피해자를 살해하는 과정 자체에서 위와 유사한 방법이 사용된 경우와는 법의 침해의 종류와 정도, 범행 수법의 대담성, 잔혹성, 엽기성 등에 따른 죄책의 경중을 평가함에 있어 차이를 둘 수밖에 없는 점, 당심에서 이루어진 피고인에 대한 여러 심리학직, 정신의학적 검사 결과, 피고인은 사이 코패스에 해당되지는 않고 반사회적 인격장에로도 진단되지 않으며 피고인이 자신의 행위로 피해자가 사망한 사실을 인정하면서 자신의 잘못을 뉘우치는 태도를 보이고 있고, 피해자의 유족들에 대하여도 사죄의 태도를 보이고 있는 점, 이러한 사정을 고려할 떄 아직도 피고인에 대하여 교화 · 개선의 여지가 일말이라도 남아 있다고 보이는 점, 피고인은 2009. 3. 경부터 국내에 체류하여 오면서 아지 형사치벌을 반은 전력이 없고, 그 이전에 중국에서 거주하는 동안에도 형사처벌을 받은 전력이 없는 것으로 보이는 점, 피고인은 이 판결이 부과하는 30년의 형을 모두 복역하고 나면 77세의 노령에 이르게 되는 점 등을 비롯하여 피고인의 나이, 성행, 경력, 범행의 동기, 수단과 결과, 범행 후의 정황 등 이 사건 변론에 나타난 모든 양형조건과 아울러 앞서 본 사형의 형벌로서의 특수성이나 다른 유사사건에서 일반적인 양형과의 균형 등에 비추어 볼 때, 피고인을 사회로부터 장기간 격리시키는 유기징역형인 징역 30년에 처함이 마땅한 사정이 있음은 인정되나, 이를 넘어서 사형의 선고가 정당화될 수 있는 특별한 사정이 있다고 누구라도 인정할 만한 객관적인 사정이 분명히 존재한다고 단정할 수는 없다. 제1심이 같은 취지에서 피고인에게 징역 30년을 선고한 것은 적정하고 제1심이 선고한 위 형이 너무 무겁다는 피고인의 양형부당 주장과 너무 가벼워 사형을 선고하는 것이 합당하다는 검사의 양형부당 주장은 모두 받아들이지 아니한다.

4. Conclusion

Therefore, since the appeal by the defendant and the prosecutor against the judgment of the first instance is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, the senior judge

Judges Min Young-young

Judge Chuncheon

1) The fact that the defendant is a foreigner requires consideration of cultural differences in the PC-R evaluation, but the defendant is a foreigner in Korean equivalent to Korean nationals.

There was no problem in his personal history and appraisal expressions. In this regard, the fact that the defendant is a foreigner.

It seems not to be a factor to threaten the credibility of the PC-R evaluation.

2) Since the game counter-party is changed, a larger amount of money can be married to the other party without multiple opportunities.

3) However, we should consider that as a Korean national in China, it is impossible to verify a living record, etc. and the source of information is limited.