(영문) 부산고등법원 2012.12.12.선고 2012노373 판결

One cellular phone that has been seized (the cell phone that has taken the face of a sexual intercourse with the dead body of a victim referred to in subparagraph 6) shall be confiscated.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts, etc.

In order to satisfy the sexual desire of the victim while having sexual intercourse with the victim, the defendant was merely a fluence of the victim, and did not have any assault or murder against the victim, and the victim was naturally dead, and there was no causal relationship between the defendant's act and the death of the victim, and the defendant had attempted to commit a sexual intercourse with the victim by gathering the fact after the death of the victim. Thus, the court below found the defendant guilty of both the death of assault and bodily injury as the ancillary charge of this case, and the judgment of the court below is erroneous in misunderstanding of legal principles and misunderstanding of legal principles.

2) Mental suffering from mental illness

The Defendant, at the time of committing the instant crime, was in a state of mental and physical disability under the influence of breathing and so on.

3) Unreasonable sentencing

The sentencing of the court below is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts, etc.

Comprehensively taking account of the evidence presented by the prosecutor, although it can be sufficiently recognized that the defendant murdered the victim's neck with dolusor intention at least, the court below found the defendant not guilty of the charge of murder, which is the primary charge of this case, and found the defendant guilty of the death of assault, which is the ancillary charge of this case, on the ground that there was no conclusive or dolusor intention, and found the defendant guilty of the death of assault, which is the ancillary charge of this case. The court below's decision

The sentencing of the court below is too uncomparably unfair.

2. Determination

A. Judgment on the assertion of mistake of fact, etc.

1) Summary of the facts charged in the principal offense of this case

On December 7, 1995, the defendant married with C, a former wife on December 10, 200, and continued married life on February 10, 200, while hospitalized at a hospital for about three years due to safety accidents at the workplace around 2000, and the marital relationship with C, divorced from C on April 7, 2006, and brought up C.

After that, the Defendant, in order to overcome the congested sexual desire, the Defendant her act of downloading and self-defluence each day through the Internet in a computer with a view to downloading her shot image. Around 40% of the Seodaemun-gu video viewed viewed by the Defendant included a virtual content that makes male feel comfortable by causing a man to feel comfortablely by getting male to stroke a female stroke. In almost every day, the Defendant, as such, was given a virtual sexual desire that he would like to report the other female strokes according to the act that strokes a stroke and a virtual strokes a female stroke in a cyber space. In addition, the Defendant was addicted to the Internet game, which is the content of the Internet game (D. D. D. r.) to grow up his character by cutting off his character into the surrounding area, and was addicted to the game.

On November 21, 2011: the Defendant, at around 00, performed the said D game in the influence of the trade name near the Yeongdeungpo Islands located in the Busan High-dong, Busan High-gu, he directly drinks or drinks for the first time, and immediately, at around 23:00, he transferred the place to 'M' on the second floor of the above frequency to 'M', which is located on the second floor of the above frequency, and drinks with F and the victim.

As above, the Defendant saw the desire to engage in sexual intercourse with F, a partner, but refused to engage in commercial sex acts, and decided to engage in commercial sex acts with E, the victim, who is a partner, and decided to engage in commercial sex acts with E, together with the Defendant, who was boarding a cab at the above singing shop and the Defendant was living in the middle-dong Busan Shipping Daegu Gel (hereinafter “the instant cartel”).

On November 3, 2011: around 18, the Defendant, at around 03:18, went into the instant telecom and moved his body from the CCTV screen to the upper floor with the victim as well as the victim, without a strong stringing or infiltrating the body, and then, on the same day: 03: 19, the Defendant opened the door immediately to the key possessed in the instant telecom 602 door, and moved to the victim.

The Defendant, without a doctor’s prescription under 602, had sexual intercourses with the victim who saw 2 and 4 eggs about the promotional agents purchased from the sales of illegal drugs. Of the sexual intercourses, the Defendant saw sexual intercourses with the victim who saw 4 eggs as seen above. Of the sexual intercourses, the Defendant saw sexual intercourses with the other female who frighted while viewing the Mano-ray images, thereby raising sexual humiliation, and attempted to realize sexual intercourses with the victim.

Defendant (KIKO 180cm, weight 95km) was frightened in a bed and killed the victim by getting the victim to die due to the heart fright by pressure around 00:00, while she was frightened in a male upper body, she was frightened from each other, and she was frightd from each other on the top below the victim’s her hand, and she was frighted from the victim’s her hand, and she was frightened from the victim’s her hand, even though she was aware that the victim might die, and even she was frightened from the sexual intercourse, until she was frightend from the victim to the victim’s her hand.

B) The judgment of the court below

(8) The court below held that it is difficult for the defendant to take advantage of his residence at the place to kill the victim because it was hard to find out that the defendant had no other motive to kill the victim first known at Ma on the day of this case; (3) the defendant seems to have her sexual intercourse or salvous sexual intercourse for the purpose of complying with his own sexual desire because it was difficult to find out the fact that the defendant was unable to take advantage of the fact that the defendant's inner pressure after having paid monthly pressure to the defendant at the long time, but it was hard to find out that the defendant had no other motive to kill the victim first known at the Ma’s singing shop; (4) The court below held that the defendant was unable to take advantage of the fact that there was no other evidence such as the fact that the defendant might have been salved or salved with the victim’s body because of the detection of the victim’s body from the 602 mother of this case, and that it was difficult for the police to find out the victim’s body from the Busan research institute.

C) Determination of the immediate deliberation

The intent of murder in the crime of murder does not necessarily require the purpose or planned intention of murder. It is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to his own act, and its awareness or prediction is not only conclusive but also it is so-called dolusent intent. In a case where the defendant asserts that there was only no criminal intent of murder or assault at the time of committing the crime, and that there was only the criminal intent of murder at the time of committing the crime, the issue of whether the defendant was guilty of murder shall be determined by taking into account the objective circumstances before and after committing the crime, such as the background leading up to the crime, motive for committing the crime, existence of the prepared deadly weapon, type, method of attack, part and repetition of the attack, degree of the occurrence of the result of death (see Supreme Court Decisions 200Do590, Mar. 9, 201; 2006Do7344, Apr. 14, 2006).

이 사건에 관하여 보건대, 원심 및 당심이 적법하게 채택하여 조사한 증거들을 종합하여 인정되는 다음과 같은 사정, 즉 ① 피고인은 수사기관에서 평소에 거의 매일 포르노 동영상을 시청하면서 자위행위를 하였는데, 피고인이 시청한 포르노 동영상 중에는 남성이 여성의 목을 조르면서 성관계를 하는 것도 상당수 있었고, 이 사건 당일 E을 만나 술을 마시다가 ' M ' 노래주점으로 자리를 옮겨 노래방 도우미인 피해자를 만나 술을 마시다가 성매매를 하기 위하여 피고인이 거주하는 이 사건 모텔 602호로 피해자를 데리고 간 다음, 피고인이 발기촉진제를 2알을 먹고 피해자와 성관계를 하면서 발기촉진제 2알을 더 먹자, 갑자기 심장이 터질 듯이 뛰면서 흥분이 되어 양손을 나비 모양으로 엄지손가락을 교차시켜 피해자의 목을 졸랐고, 나중에 일어나보니 피해자가 목 부위에 손으로 조른 듯한 손자국이 보이는 상태로 사망해 있어 피고인이 피해자의 목을 너무 세게 졸라 사망한 것으로 생각하였으며, 이 사건 모텔의 주인에게 방에 여자가 자고 있으니 깨우지 말라고 하고 현장을 이탈하였다고 진술한 점, ② 부산대학교 의학전문대학원 법의학연구소 의사 H 작성의 부검감정서에는, 피해자의 사체 전신이 부패되어 있어 외표 및 내부 검사에서 질병 등 사인을 판단할 수 없는 것으로 되어 있는 점, ③ 서울대학교 의과대학 교수 N 작성의 감정서에는, 일반적으로 목을 졸랐다는 사실이 확인되고 사람이 사망하는 결과가 발생하였는데 혈관압박이나 기도폐쇄에 의하여 사망하였다는 증거가 확인되지 아니하는 경우에는 경부압박에 의한 심장마비로 진단하는데, 이 사건에 있어서는 피고인의 진술이 있을 뿐만 아니라 피해자가 사망한 이후 피고인이 피해자의 사체와의 성관계 장면 등을 자신의 휴대전화기로 촬영한 동영상 ( 이하 이 사건 동영상이라 한다 ) 에서 피해자의 목 부위 위쪽에 몸통에 비하여 확연하게 구별되는 울혈현상이 있는 것을 확인할 수 있으며, 부검 당시 피해자의 목과 두부가 몸통보다 부패가 더 진행되어 있어 해부학적으로도 목을 졸랐다는 증거가 있고, 피해자에게 혈관압박이나 기도폐쇄가 있었다고 볼 수는 없어, 결국 피해자는 양쪽 손바닥으로 경부를 압박당하여 심장마비로 사망하였다고 보는데 별다른 이의가 없을 것으로 판단되고, 피고인과 피해자의 현격한 키 및 몸무게 차이 등을 고려하면 피해자가 저항하였다 하더라도 피고인에게 쉽게 제압을 당하였을 것으로 추정되며, 양손 엄지손 가락을 서로 깍지 껴 걸고 나비모양으로 양쪽 손바닥을 벌려 목을 조르는 경우에는 피해자의 목에 힘이 가해지는 면적이 넓고 손바닥에 돌출 부위가 없으며 목에 손상이 일어나기 전에 사망할 수 있어 피해자의 목 표면이나 조직에 별다른 손상이 나타나지 아니할 수 있다고 되어 있는 점, ④ 고려대학교 의과대학 의학연구소 의사 I, J의 원심에서의 사실조회 회보에는, 사망에 관련된 정보가 없거나 부패한 시체를 부검할 때에는 사인을 판단할 수 없는 경우가 많은데, 이 사건에 있어서도 부검 당시 제공된 정보가 부족하고 사체의 부패로 인하여 부검감정서에 사인을 판단할 수 없다고 되어 있는 것으로 보이며, 이 사건 동영상과 피고인의 진술 등을 종합하면 피해자의 사인은 경부가 압박되어 경동맥 또는 경정맥이 눌려 뇌로 가는 혈류가 차단되어 질식이 일어났을 가능성과 경동맥동이 압박되어 미주신경이 차단됨으로 써 반사성 심장마비가 일어났을 개연성도 있는 것으로 판단되며, 경동맥동 압박에 의한 미주신경 자극으로 인한 심장마비는 드물기는 하지만 실제로 수차례 발생된 바 있고, 심장마비 이후에 계속하여 목을 조르는 경우에는 울혈 등은 생성되지 아니한다고 되어 있는 점, ⑤ 부산대학교 의학전문대학원 법의학연구소 의사 H의 원심에서의 사실조회 회보에는, 수사기관에서의 부검감정서의 내용과는 달리 법의학자들의 감정서 및 원심에서의 사실조회 회보 등을 종합하면 피해자의 사인은 경동맥동 압박에 의한 심장마비로 보는 것이 유력하다고 되어 있는 점, ⑥ 피고인이 그 주장과 같이 성적 욕구를 충족시키기 위하여 피해자의 목을 조르게 되었다 하더라도, 피고인이 포르노 동영상을 시청하면서 상대방이 숨이 넘어갈 정도로 목을 조르는 장면을 보았다고 진술하였을 뿐만 아니라, 사람의 목 부위는 급소로서 강하게 조르면 사람이 사망할 수 있다는 것은 경험칙상 누구나 쉽게 예측할 수 있고, 피고인은 키 180cm, 몸무게 95kg의 건장한 체구의 남성인 반면 피해자는 키162cm 정도의 상대적으로 왜소한 체구의 여성으로 이 사건 당시 피고인이 침대에서 피해자의 몸 위에 올라가 남성 상위 체위로 성관계를 하면서 양손 엄지손가락을 서로 깍지 껴 걸고 나비모양으로 양쪽 손바닥을 벌려 피해자의 목을 졸랐으므로 피고인의 하중이 양쪽 손바닥을 통하여 피해자의 목 부위에 집중적으로 전달될 수밖에 없었던 점 등에 비추어 피고인은 적어도 불확정적으로라도 자신의 행위로 인하여 피해자의 사망이라는 결과를 발생시킬 만한 가능성 또는 위험이 있음을 인식하거나 예견할 수 있었다고 봄이 상당한 점, ⑦ 피해자가 비록 피고인과의 합의 하에 성관계를 하기 위하여 이 사건 모텔 602호에 들어갔다 하더라도 피고인이 피해자의 목을 강하게 조르는 것까지 용인하였다고 보기 어렵고, 피해자의 손톱에서 피고인의 DNA가 발견되기까지한 점, ⑧ 피해자는 오로지 피고인과 성관계를 하기 위하여 이 사건 모텔 602호에 들어갔다가 사망하였는데, 피고인이 피해자의 목을 조른 행위 이외에 피해자가 사망할 만한 다른 원인을 전혀 찾을 수 없는 점 등에 비추어 보면, 피고인이 적어도 자신의 행위로 인하여 피해자가 사망할 수도 있다는 점에 대한 미필적 인식이나 예견을 하고 양손 엄지손가락을 서로 깍지 껴 걸고 나비 모양으로 양쪽 손바닥을 벌려 피해자의 목을 졸라 피해자로 하여금 경부압박에 의한 심장마비 등으로 사망에 이르게 하여 피해자를 살해한 사실을 충분히 인정할 수 있다 .

Nevertheless, the court below rendered a not-guilty verdict on the murder, which is the primary charge of this case. The court below erred by misunderstanding of facts, etc., and the prosecutor's above assertion pointing this out has merit.

ii)the point of a dead body balone;

The court below and the court below comprehensively adopted the evidence and examined the following circumstances, namely, ① the defendant set up a cell phone device by converting the victim's cell phone into the dynamic seat, and taken the dynamic image of this case including the sexual intercourse head in a relatively accurate manner. ② According to the dynamic image of this case, even though the defendant moved the victim who has been frighted, sexual intercourse with the victim, he did not respond at all to the victim's abnormal change of situation, such as "the defendant has died during this year, I cannot see, I cannot see," ③ since the defendant's written appraisal by NOU of Seoul National University, I would like to recognize that the victim had already been frighted at the time of his death in the dynamic image of this case, and there was no possibility that the victim would have already frighted with the victim's face at the time of his death in light of the fact that the victim had already been frightd with the victim's oral eye at the time of his death in the dynamic body.

B. Determination as to the assertion of mental disability

According to the records, it is recognized that the defendant had drinking alcohol at the time of committing the crime of the body balthal, etc. of this case, and taken the balthal of alcohol at the time of the crime of the body balthal of this case, but in light of the circumstances revealed in the arguments of this case, such as the circumstance of the crime of the body balthal of this case and the defendant's act before and after it, it is deemed that the defendant had weak ability to discern things or make decisions, and therefore

3. Conclusion

Therefore, the prosecutor's appeal as to the murder, which is the primary charge of this case, is reasonable, and the above murder and the use of the public records, etc., which the court below found guilty, shall be sentenced to a single sentence within the scope of punishment imposed by concurrent crimes pursuant to Article 38 (1) of the Criminal Act in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below cannot avoid the whole reversal of the judgment of the court below as to the defendant's mistake of facts, etc. as to the death of assault, which is the ancillary charge of this case, and the defendant and the prosecutor's assertion of unfair sentencing is reversed in its entirety pursuant to Article 364 (6) of the Criminal Procedure Act without any judgment as to the allegation of facts against the defendant

On April 7, 2006, the criminal facts of the lower judgment acknowledged by the court constitute a crime. 2. The Defendant divorced with C around April 7, 2006, and scamblingly, and scamd and scamd on the Internet on a daily computer for the purpose of resolving the sexual desire that scamblingly divided. The Defendant’s watching scamd and scamd, which included approximately 40% of the Defendant’s watching scamd and scamd, leading male scambling immediately before the scambling of the female scam, and 10% of the other female scamd and scamd, scambling one another’s sexual desire. In addition, the Defendant, 10% of the instant scamd and scamd one’s own character, scambling one another’s own Internet, scambling one another’s own character.

23: At least 00, the Defendant: (a) moved the victim’s body at 1st century to Ma, with the victim’s body located on the second floor; (b) had the victim engage in sexual intercourse with F and the victim; (c) had the victim engage in sexual intercourse with his partner; and (d) had the victim engage in sexual intercourse with E, with the victim’s 6th century, and had the victim engage in sexual intercourse with the victim’s body at 1st century, and had the victim engage in sexual intercourse with the victim’s body at 1st century, and had the victim engage in sexual intercourse with the victim’s body at 0th century. At around 18, the Defendant moved the victim’s body to 2nd 13th 1st 1st 101 and 6th 6th 2nd 3rd 10.

Summary of Evidence

The summary of the evidence on the facts of the crime acknowledged by this court is as follows: (a) except for the addition of 'written reply to further questioning by N professors related to the judgment of the court of first instance', since it is the same as the corresponding column of the judgment of the court below, this is cited in accordance with Article 369 of the

Application of Statutes

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

Article 228(1) of the Criminal Act ( point of false entry into public electronic records, choice of imprisonment), Articles 229 and 228(1) of the Criminal Act (the point of exercising false entry into public electronic records, choice of imprisonment), Article 250(1) of the Criminal Act (the point of murder, choice of limited imprisonment), Article 159 of the Criminal Act (the point of failing to make a false entry into public electronic records, the point of choosing of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Crimes of homicide with the Gross Mutandis Punishment)

1. Confiscation;

It is recognized that the reason for sentencing under Article 48 (1) 1 of the Criminal Code is that the defendant has partially divided his/her mistake, and that the defendant has no same criminal record.

However, the crime of false entry into the public electronic records, etc. of this case and the crime of false entry into the public electronic records, etc. of this case is likely to impair the state's status disclosure function through disguised marriage with foreigners and cause social problems arising from illegal stay of foreigners. It is not good that the crime of murder of this case and the crime of homicide of this case is established in consideration of the sentencing conditions of this case, such as the defendant's age, character, environment, motive, means and consequence of the crime, etc., in order to meet sexual desire of the victim who has sexual intercourse with the victim by suggesting sexual intercourse, at least by the defendant with the intention of murdering the victim at least, with the intention of committing murder, and attempted sexual intercourse with the victim's body, and the victim's body was taken to take the victim's body with his cell phone, and thus, the crime is very heavy in nature, society, moral criticism is highly likely, and the defendant did not agree with the victim's bereaved family until the judgment of the court.