2015 Gohap353 homicide

2015 High 3 (Joint Medical Treatment and Custody)

2015 Written order to attach 67(Joint)

Appellants and persons requesting an attachment order

A

Cho Hong-young (prosecutions, public trials), Kim hee-young (public trial)

Law Firm B

Attorney C, D

October 20, 2015

A defendant shall be punished by imprisonment for four years.

Seized evidence No. 1 shall be confiscated.

A person subject to medical treatment and custody shall be punished by medical treatment and custody. The request for attachment order shall be dismissed.

The criminal facts and the facts of the cause of the request for medical treatment and custody and the applicant for medical treatment and custody and the person subject to the request for attachment order (hereinafter referred to as the "defendant") have been hospitalized in Busan City Mental Hospital Hospital in Busan City, which is located in Busan City, from June 17, 2014 to August 26, 2014 and has been treated as a mental fission.

The Defendant, a large number of victims E (M, 34 years of age), was scambling in concert with ordinary hacking offenders and scambling criminals, and was scambling on a exchange that he was constantly monitoring and bullyinging him at all times by mobile phones and ultra-small cameras, etc. of the Defendant. On April 2015, 2015, the Defendant was scambling the police house and living together with the nation, and was scambling the victim.

As above, the Defendant: (a) at around 03:30 on May 17, 2015, in a state of lacking the ability to discern things or make decisions due to mental disorders caused by mental fission; (b) at around 03:30 on May 17, 2015, the Defendant opened a entrance door at the Defendant’s residence located in F apartment 101 203 Dong-gu, Busan, and opened the entrance door; and (c) taken a knife ( approximately 30 cm in total length, about 18 cm in knife length) in the kitchen-gu, the kitchen-gu, Busan; and (d) entered the said victim’s house at a small room where the said victim was self-employed; and (e) took the part of the victim’s chest who was living in the bed and flife in the bed, and (e) took the risk of murdering the victim’s mental disorder due to the mental disorder and recidivism in the facility where the victim died.

Summary of Evidence

1. Defendant's legal statement;

1. Each legal statement of a witness G, H, I, and J;

1. One protocol of statement of the police;

1. Records of seizure and the list of seizure;

1. 112 Report of the instant case: (a) the details of receipt of the report; (b) on the spot identification report; (c) a corpse autopsy report; (d) a request for cooperation with an investigation; (c) a mental assessment report; and (d) a criminal investigation report (Evidence No. 5, 10, 11, 13, 17, and 21); (c) the need for treatment and the risk of recidivism: (d) the following circumstances revealed by the aforementioned evidence; (e) the Defendant, as a mentally divided patient, was hospitalized in a mental hospital; but (e) the Defendant committed the instant crime in a state of mental disorder due to the aggravation of the above symptoms at the time of the instant crime; (b) a doctor G of the Medical Treatment and Custody Center, if the Defendant did not undergo a mental diagnosis in the future, is presumed to have the possibility of re-offending by illness; and (d) the Defendant voluntarily wants to provide medical treatment through medical treatment and custody; and (d) the Defendant’s age, character, motive, and details of the instant crime and the need for re-offending of the Defendant.

Application of Statutes

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

Article 250(1) of the Criminal Act (Appointment of Imprisonment for Imprisonment)

1. Statutory mitigation;

Articles 10(2) and (1) and 55(1)3 of the Criminal Act (a mental suffering from mental disorder caused by a mental disorder)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Medical treatment and custody;

Article 2 (1) 1 of the Medical Treatment and Custody Act

Judgment on the argument of the defendant and defense counsel

1. The assertion;

At the time of committing the crime, the Defendant was in a state of mental disorder due to the network of the mental fission.

2. Determination

(a) A person who does not have the ability to discern things or make a decision due to a mental disorder as provided for in Article 10 of the Criminal Act and a person who lacks the ability to make a decision refers to a person who is in the state of a mental or physical disorder or a person who is in the state of such mental or physical disorder, and the adopted person is merely different from the degree of his or her disability, and the adopted person does not have the ability to discern things from vision

In the event of lack of capacity to act, mental disorders refer to the state in which mental disorders do not reach the degree of lacking the above capacity, but their ability has been considerably reduced (see, e.g., Supreme Court Decision 83Do3007, Feb. 28, 1984).

B. In light of the following circumstances acknowledged by the record, it is difficult to view that the Defendant, beyond a mental and physical disability at the time of committing the instant crime, did not have the mental and physical disorder capable of discerning things or making decisions. Accordingly, the above assertion by the Defendant and the defense counsel cannot be accepted. ① The Defendant thought at the time of committing the instant crime that the victim was living in the room of the victim, rather than the victim who was living in the room at the time of committing the instant crime, he would die of the victim, and the Defendant thought that the victim’s face, body knife, body knife, etc. was knife after visiting the victim to prevent other families from entering the room. The Defendant thought that the victim’s body was knifeed by the victim, but knife again caused the death of the victim under the awareness that the victim would die. Following the instant crime, the Defendant, upon receiving a report to a small number of persons at the same time, told him to the police officer, reported that the Defendant was in response to the victim’s attitude at the time of the crime.

In light of the motive, background, and method of the crime, the behavior and state of the defendant after the crime, the details and attitude of the statement made by the investigation agency, etc., the defendant appears to have come to the crime of this case under the awareness of the meaning of the act he committed, the result therefrom, the time and consequence of the crime, and the fact that he committed the crime of this case. Thus, it cannot be said that the defendant did not have the ability to act as the result of the crime of this case, or did not have the ability to act in accordance

A medical doctor G belonging to a medical clinic who has conducted a mental diagnosis against the defendant is presumed to have a serious difference with the present mental condition at the time of the crime of this case as a patient at the time of committing the crime of this case, such as damage, network, accident, damage, exchange, impulse, unstable emotional condition, lack of medical awareness, etc. Furthermore, it is difficult to view that the defendant had a weak mental capacity and decision-making ability. Moreover, there is no special circumstance to deem that there was a wrong decision-making by this medical specialist.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to fifteen years;

2. Scope of recommending punishment: Reduction area (a person subject to special mitigation) (a person subject to mitigation for three to five years) in the mitigated area (a person subject to special mitigation) of category 1 (homicide for homicide) (a person subject to non-performance of the person himself/herself), and a method of committing a cruel crime.

3. The crime of this case by which the sentence decision has been pronounced has been committed by the defendant who knife knife his knife and murdered with knife, and the contents of the crime are extremely anti-pick and cruel, the victim has lost an irrecoverable life in the suffering of the life of the victim, and the crime by family life has a knife suffering and suffering from the knife that it is difficult for his family members to recover even with respect to ethics and pets between family members.

However, the defendant committed the crime of this case in a state of mental disorder due to mental disorder, the victim's bereaved family members, including the defendant and the victim's parents, wanting the defendant to take a preference against the defendant, the defendant is divided in depth, and the defendant has no criminal records so far. Meanwhile, it is necessary to respect the jury's opinion on sentencing, but to consider the treatment period through medical treatment and custody for the defendant in sentencing, and other factors specified in the arguments of this case such as the defendant's age, character and behavior, environment, motive, means and result of the crime, after considering various sentencing conditions specified in the arguments of this case, such as the circumstances after the crime.

Judgment on the request for attachment order

1. Grounds for requesting attachment orders;

The defendant is a person who has committed murder in a state of mental disorder and is in danger of re-committing the murder.

2. Determination

Considering the following circumstances revealed through the record, it is difficult to readily conclude that the evidence presented by the prosecutor alone poses a risk of re-committing the Defendant from committing murder.

① The Defendant had no criminal history so far, and had been living relatively normal during the period of hospitalization and pharmacologic treatment in a mental hospital.

② A doctor G of the Medical Treatment and Custody Center who has conducted a mental diagnosis against the Defendant stated to the effect that the risk of recidivism may be significantly lowered if appropriate treatment is given to the Defendant.

③ The defendant has actively expressed his/her intention to treat his/her own disease through medical treatment and custody, and his/her family members also expressed his/her intention to treat and guide the defendant.

④ In light of such circumstances, the Defendant’s imprisonment with prison labor for a period of four years is expected to have a substantial effect on the treatment of the Defendant, the prevention of recidivism, and the correction of character and conduct when having the Defendant receive medical treatment and custody. Therefore, it is difficult to readily conclude that there is a risk that the Defendant will repeat murder crimes after the completion

3. Conclusion

Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

Opinions on jury verdict and sentencing, etc.

1. A verdict of guilt or innocence;

Up to nine jurors' full-time guilty

2. Opinions on sentencing

- Five years of imprisonment: Imprisonment with prison labor for one juror and three years and six months: two jurors;

- Imprisonment for three years: Six jurors;

3. Opinions on requests for medical treatment and custody;

Quotations by the unanimous jury of nine jurors

4. Opinions on requests for attachment orders;

- cite: One person;

- Dismissal: It is so decided as per Disposition through a participatory trial under the Act on Citizen Participation in Criminal Trials for not less than eight reasons.

The presiding judge of the Supreme Court;

Judges, Chief Judge

Judge Choi Jin-hun