(a) Where the option of the death penalty is allowed;

(b) The case reversing the judgment of the court below that is subject to death penalty on the ground that it is right to determine the sentencing on the grounds that, in case where a series of crimes that have abandoned the body to rape, kill, and conceal the body is at issue, a thorough examination and confirmation as to whether all crimes have been planned in advance or have been committed by contingent and net appraisal have been conducted, a thorough examination and confirmation have been made

A. The death penalty is the very extreme punishment that deprives a human life of himself/herself of it, and should be applied only in extenuating circumstances where it is impossible to maintain the life. As such, the death penalty may be granted only when it is deemed that the liability for a crime is extremely significant and serious, and that it is inevitable to keep the life from an ordinary preventive point of view in view of various circumstances, such as the motive, appearance, nature of the crime, means of the crime, cruelness, result, seriousness of the result, the number of victims, damage assessment, the age of the offender, previous conviction, criminal record, circumstances after the crime, the environment of the offender, education, and the growth process.

B. The case reversing the judgment of the court below against the defendant's death penalty on the ground that, in a case where a series of crimes, including rape, murder, and abandonment of the dead body, are not the subject of a positive assessment, or where a series of crimes, the main contents of which are easy rape and murder, are frequently low, are at issue, and where all crimes have been committed closely in advance, and where contingent and net assessment has been conducted merely, the first crime was transferred to the implementation under the plan, but the crime was committed as a result of the first crime, and each of the following crimes differ in the sentencing conditions in a case where the crime was committed rapidly in the situation where the first crime was concealed, concealed, or predicted, and the crime was committed under the plan to commit the crime was committed, and whether the defendant planned and committed the crime closely in advance to murder the victim after rape, or because it was just and conclusive after a thorough examination and confirmation as to whether the crime had led to the crime of murder due to a sudden change in the situation.

(b)Articles 41 and 51 of the Criminal Code; § 383 subparagraph 4 of the Criminal Procedure Code;

A. Supreme Court Decision 85Do926 delivered on June 11, 1985, Supreme Court Decision 87Do1240 delivered on October 13, 1987, Supreme Court Decision 92Do1086 delivered on August 14, 1992

Defendant

Attorney Kim Jong-hoon

Daejeon High Court Decision 94No333 delivered on September 16, 1994

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal by the defendant and the public defender are also examined.

1. As to the mistake of facts against the rules of evidence

Examining the evidence adopted by the court below and the court of first instance in comparison with records, the judgment of the court below that recognized that the defendant committed a crime of rape and murder of the victim of this case, and abandonment of the body of the victim of this case is just and acceptable, and there is no error of law by misconception of facts against the rules of evidence, such as the theory of litigation.

There is no reason to discuss this issue.

2. On the issue of unfair sentencing

The court below determined that the punishment of the court of first instance that sentenced the defendant to death is appropriate when examining all the conditions that form the basis for sentencing specified in the instant case, such as the defendant's age, character and conduct, intelligence and environment, relationship with the victim, motive, means and consequence of the crime, etc., and the circumstances after the crime, etc., are examined as follows: (a) the crime of this case was committed in a anti-human act that abandons the victim's body; (b) the crime of this case was committed in a manner that was planned and closely sealed; and (c) the crime was committed in a manner that was committed in a manner that was committed in a manner that was committed; and (d) two parts of the crime was committed in a manner that was committed in a manner that was committed in a manner that was committed in a manner that was committed in a manner that was committed in a manner that was committed in a manner that was committed four times or more.

In light of the foregoing, the death penalty is a serious extreme form of deprivation of human life itself, and it shall be applied only to cases where it is inevitable to maintain that human life cannot be preserved. As such, in choosing the death penalty, it may be permitted only to cases where the punishment is deemed inevitable in light of various circumstances such as the motive, pattern, nature of a crime, means of a crime, cruelness, consequence, seriousness of a result, the number of victims, damage assessment, age of an offender, previous conviction, circumstances after a crime, environment of an offender, education, and growth process, etc. (see, e.g., Supreme Court Decisions 92Do1086, Aug. 14, 192; 87Do1240, Oct. 13, 1987).

The court below cited that the crime of this case was planned and closely committed as one of the major sentencing conditions in maintaining the judgment of the court of first instance, which is subject to death penalty. As to this case, in a case where there is a series of crimes involving a simple and easy rape and murder, which are frequently low at the time of the instant case, and where all of the crimes was planned in advance, and was committed simply by a contingent and net appraisal, and the first crime was transferred to the execution under a prior plan, but the first crime was resulting in a contingent occurrence of the first crime under the forward plan, and thus, the sentencing conditions differ in each case. Thus, even in this case, it is right to determine whether the defendant planned in advance to murder the victim after rape, or attempted to rape, and whether it led to a thorough deliberation and confirmation of whether the crime of this case led to the crime of murder due to changes in the situation of the first crime.

However, according to the records of the National Institute of Scientific and Investigative Research, it cannot be deemed that the victim was administered in such a quantity as to the 1st day of death, in light of the victim's aforementioned contents and blood exemption, and the degree of blood detected, it cannot be deemed that the victim was administered in such a quantity as to the 1st day of the presumption of death. Meanwhile, according to the records, the victim was working normally before the defendant's house, which is the place where the crime was committed, and the victim was committed at the church after the defendant's house, and the victim was committed with her friendship and her day after the defendant's house, and the time when the victim arrived at the defendant's house, and the time when the victim was her house and time when she died, it cannot be viewed that the victim was killed and exempted from the judgment of the court below, and that the victim was planned and exempted from the punishment of this case after the victim's arrival, and that the victim could not be viewed as having been rape, as stated in the judgment of the court below.

If it is obvious that the quantity of exempted water detected by the victim is no longer than the death, it may be deemed that the murder of this case was planned in advance. Even without the above, if the victim had the ability to defend himself/herself, if he/she committed the crime of murdered by medication of sufficient quantity of exempted water, then he/she can see the Defendant’s residual nature in that he/she killed the victim with a view to the degree that he/she lost his/her ability to defend himself/herself. However, if the quantity of exempted water does not reach the death amount, and the victim did not clearly appear in the effect of murder at the time of the above crime, the Defendant attempted to prevent the victim from committing rape, which was planned when the victim lost his/her ability to resist or her ability to commit the crime, and thus, the lower court should have determined the remaining quantity of exempted water by considering the following factors: (a) whether the victim could have prevented the victim from committing the crime of homicide before it appears in effect; and (b) whether it could be deemed that it would have been necessary to acknowledge the remaining quantity of exempted water by the Defendant’s in the first stage of rape.

The abandonment of the body to rape, kill, and conceal the body is an anti-humanistic crime. Although the method of the crime is not cruel, the method of the crime is also cruel, the choice of the extreme punishment to deprive the life of a human being who cannot with dignity as seen earlier, and whether to impose the punishment should be chosen with due care after sufficient deliberation as to the sentencing conditions. Thus, it is difficult for the court below to avoid criticism that the defendant's act of committing the crime of this case is planned and closely low without resolving the above questions, and thus, it is difficult to avoid the criticism that the punishment of this case was extremely unfair because the defendant failed to exhaust all deliberation as to the sentencing conditions, and thus, it is reasonable to point this out.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)