The case judged that the circumstance such as mental illness and drinking exceeding alcohol, etc. was a crime in a state of mental disorder.

If a person with a mental illness, such as a mental disorder accompanying a flatness certificate, has committed an offense for the purpose of evading arrest by drinking a large amount of cattle exceeding the usual quantity at the time of the offense, and sucking one point out of the water that does not reach a certain value, is concealed on the chest, and thus is discovered, it is reasonable to view that the person had the weak ability to discern things or make decisions at the time of the offense.

Article 10(2) of the Criminal Act

Defendant

Defendant

Busan District Court Decision 200Na11578 decided May 21, 200

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

One hundred and thirty days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.

The gist of each of the grounds for appeal by the defendant and his defense counsel is that the court below erred in misunderstanding the facts affecting the conclusion of the judgment, although the defendant did not have inflicted injury upon the victim of the quasi-Robbery of this case, and the court below committed robbery. Second, even though the defendant committed each of the crimes of this case under the conditions that the mental disorder, which caused the illness, was so small that the court below failed to take into account the existence of criminal liability against the defendant and the decision of punishment, committed a mistake that affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment, and the third, the defendant committed a contingent crime as a primary crime, and is divided in depth, and in light of various circumstances such as family situation at present, etc., the sentence of the court below against the defendant is too unreasonable.

살펴보건대, 먼저 원심이 적법하게 증거조사를 마쳐 채택한 여러 증거들을 기록에 비추어 종합 검토하여보면, 원심이 판시한 피고인의 이 사건 강도상해의 범죄사실을 인정할 수 있고, 달리 원심의 사실인정과정에는 논지가 지적하는 바와 같은 위법이 없으므로 피고인 및 그 변호인의 이점 항소논지는 이유없다. 그러나 피고인의 수사기관 이래 당심법정에 이르기까지의 각 진술 및 그 태도 당심증인 공소외 1, 공소외 2, 공소외 3의 각 증언등을 종합해 보면, 피고인은 평소 성도착증을 수반하는 성격장애등의 정신질환이 있어왔는데 이 사건 준강도상해의 범행당시에는 평소의 주량을 훨씬 넘은 소주 2홉들이 2병을 마시고 별로 값도 나가지 않은 물에 흠뻑 젖은 여자용 바지 1벌을 훔쳐 가슴속에 숨겨있다가 발각되어 체포를 면탈할 목적으로 범행을 저지르게 된 점이 인정되는 바, 이에 미루어보면, 피고인이 그 범행당시 사물을 변별하거나 의사를 결정할 능력이 미약한 상태에 있었음을 알 수 있으므로 결국 피고인의 이 사건 강도상해의 소위는 형법 제10조 제2항 의 심신미약자의 행위로서 그 형을 필요적으로 감경하여야 할 것임에도 불구하고 원심은 이에 이르지 아니하였으니 원심판결에는 판결결과에 영향을 미친 사실오인과 법률적용의 위배를 범하였음이 명백하여 피고인 및 그 변호인의 이점 항소논지는 위 인정범위내에서 이유있고, 따라서 그 나머지 항소논지에 대한 판단에 나아가기 전에 원심판결은 이점에 있어서 벌써 파기를 면치 못한다 할 것이다.

Therefore, a party member shall reverse the judgment of the court below in accordance with Article 364(6) of the Criminal Procedure Act, and it shall be decided as follows after pleading.

In addition to adding "the defendant was in a state of mental and physical disability at the time of the crime in this case" to the criminal charge column of robbery injury, it is identical to that of the judgment of the court below. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Defendant and his defense counsel asserted that they were in a state of mental disorder due to mental disorder at the time of each of the crimes in this case. As seen above, as seen above, the Defendant was found to have been in a state of mental disorder only at the time of the crime of robbery in this case, and thus, the Defendant and his defense counsel’s objection to this point is acceptable within the scope of the above recognition.

In each so-called the so-called "special crimes" of Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 330 and 329 of the Criminal Act, and Article 337 and Article 335 of the Criminal Act are applicable to the so-called "the so-called "the Act on the Aggravated Punishment, etc. of Specific Crimes" of the holding. Since the defendant is in a state of mental disability at the time of the crime of robbery in the judgment, the punishment shall be mitigated pursuant to Articles 10 (2) and 55 (1) 3 of the Criminal Act because the above two crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, and since the above two crimes are concurrent crimes under Articles 38 (1) 2 and 50 of the Criminal Act, the court below sentenced the punishment to a more severe punishment than punishment under Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the defendant is divided as the first offender, and all damaged goods are returned, and there are reasons for mitigation of Article 555 (1) of the Criminal Act.

It is so decided as per Disposition for the above reasons.

Judges Choi Han-ro (Presiding Judge)