2013Gohap 114 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Retain Intimidation)

A person shall be appointed.

Conscepts (prosecutions) and Austrias (Public Trial)

A. (Korean National Assembly Election)

April 26, 2013

A defendant shall be punished by imprisonment for not less than six months.

Criminal history room (criminal history)

On October 27, 2008, the Defendant was sentenced to two years of imprisonment with prison labor for obstruction of performance of official duties, etc. at the Busan District Court on August 18, 2010, and completed the execution of the sentence in the Ansan Prison on August 18, 2010. On November 8, 2012, the Defendant was sentenced to eight months of imprisonment with prison labor for injury and became final and conclusive on February 1, 2013.

[Criminal Facts]

On January 18, 2013, the Defendant filed a complaint with the victim B against his suspicion of retaliation, intimidation, etc. at the Busan detention center located in the Busan Simdong-gu, Busan, Busan, on the ground that the victim B was sentenced to an additional imprisonment for six months in consideration of the support. It seems that there seems that there is a variety of time when the victim B liquidates the Defendant with love and her mind to exchange. It seems that the statement that the Defendant her son son son son son son son son son son son son son son son son son. It seems that the son son son son son son son son son son son son son son son son son son son son son is eventually a son son. It would eventually be expected that the son son will eventually receive a large gift. Without doing so, I want to create the son son son son son son son son son son son

As a result, the defendant threatened the victim with the purpose of retaliation against the provision of investigation teams or statements in relation to the investigation or trial of his criminal case.

Summary of Evidence

1. Partial statement of the defendant;

1. The police statement concerning B;

1. A copy of a retaliation;

1. A previous conviction in judgment: A inquiry report on criminal records, etc., a statement before and after dispositions, a report on results of confirmation, a criminal investigation report (Attachment to a copy of a judgment), and a criminal investigation report (a report on confirmation at the expiration

Application of Statutes

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

Article 5-9 (2) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 283 (1) of the Criminal Act

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Handling concurrent crimes and legal mitigation;

Article 37 (latter part), Articles 39 (1) and 55 (3) of the Criminal Act / [The punishment shall be mitigated in consideration of equity and equity in the case where the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes and the crime of bodily injury for which judgment has become final

Judgment on the argument of the defendant and defense counsel

1. Claim that there was no purpose of retaliation;

The defendant and his defense counsel asserted that the defendant sent a letter to the victim to express his wife's suppression while expressing his wife, and that the victim did not send a letter to the victim for the purpose of retaliation against his accusation.

Article 5-9 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes added a subjective element of the crime of assault or intimidation, which is a specific purpose related to a trial or investigation, to the elements of the crime of assault or intimidation in order to protect the victim after the report, and prescribes the statutory punishment heavier than the crime of assault or intimidation (see, e.g., Supreme Court Decision 98Do631, May 8, 1998). It should be reasonably determined in light of social norms by comprehensively taking into account various circumstances, such as the motive and process of the crime as to whether the purpose was committed, the method and mode of the act, the details and form of the act, and the personal relationship with the victim.

As to the instant case, the following circumstances acknowledged by the evidence adopted by the court and examined by this Court: ① on October 201, the Defendant filed a complaint against the victim under the suspicion of assault, etc., i.e., “Cinsan, wire ropes, miscellaneous removal agents, and rats, etc. immediately wanting to be included in the dex.” As a result, the Defendant sent a letter of intimidation to the effect that the victim would incur harm to the victim after release, such as “,” and was sentenced to six months of imprisonment. As such, the Defendant sent such letter as indicated in the facts constituting the offense in the judgment during the convict (hereinafter “instant letter”) to the victim several times, and ② The letter of this case contains an audit that the victim was sentenced to additional imprisonment with prison labor for six months with special love. It appears that the Defendant had to be subject to criminal punishment for the victim, including imprisonment with prison labor, and the details and circumstances leading up to criminal punishment for the victim. Therefore, it appears that the Defendant’s accusation and the Defendant’s defense counsel’s accusation against the victim were not accepted.

2. The assertion that it is not a threat of harm or harm;

The defendant and his defense counsel asserts that the defendant merely expressed his original network and the conflicting mind against the victim, and that it does not notify the harm.

"Intimidation required for the establishment of a crime of intimidation" generally notifies a person who has become the other party of harm sufficient to cause fear. Whether such threat constitutes a threat of harm or injury must be determined by taking into account various circumstances before and after the act, such as the offender and the other party’s tendency, surrounding circumstances at the time of notification, relationship and status between the offender and the other party, and the degree of friendship (see, e.g., Supreme Court en banc Decision 2007Do606, Sept. 28, 2007). As to the instant case, health class and the following circumstances recognized by the evidence adopted and investigated by this court, namely, ① the victim sent at the Busan Jinjin Police Station around January 21, 2013 to the effect that the victim will not leave the victim when the defendant released from the prison.

In the police investigation process, the defendant submitted a written complaint to request the defendant to take action, and "I think how I will find the defendant at the time of release, and what I want to do." "I would like to create a image of fly," but if the defendant acted so far, I would like to see that I would like to feel considerable fear due to the letter of this case, such as "I would like to make a statement". ② The letter of this case "I would like to see that I would like to see that I would like to see that I would like to say that I would like to know that I would like to receive large gifts." It is difficult to see that I would like to see that I would like to see that I would like to think that I would like to see that I would like to see that I would like to see that I would like to see that I would like to know that I would like to be the victim of this case, such as "I would like to release the victim," and that I would like to see that I would like to see that I would like to know that I would know that I would like to know the victim.

The reason for sentencing [the scope of sentencing] 6 months to 25 years of imprisonment

[Whether the sentencing criteria are applied] Since the latter concurrent crimes of Article 37 of the Criminal Act are concurrent crimes, the sentencing criteria are not applied.

[Determination of Sentence] The crime of this case with 6 months imprisonment was committed by the victim's accusation that the defendant sent to the same victim a letter of intimidation that the defendant would pose a danger after being released from the court for the purpose of retaliation against the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Retaliatory Crimes, etc.). Since the nature of the crime is not very good in light of the motive, circumstance, and correspondence of the crime, it is necessary to strictly punish the defendant.

However, the fact that the defendant's mistake is broken down and reflected in his own mistake, and the crime in the holding should take account of equality with the case of concurrent crimes under the latter part of Article 37 of the Criminal Act in relation to the crime for which judgment has become final as stated in the first head of the crime, and other factors of sentencing as shown in the arguments in the present case, such as the defendant's age, character, character, environment, background of the crime, circumstance after the crime, etc., shall be determined by taking

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