(영문) 서울중앙지방법원 2018.1.26. 선고 2017노3941 판결

The Defendant: (a) laid the victim’s drinking water disease, which caused gasoline to fluorize the victim; and (b) in the process of fighting with the victim’s body, gasoline was spreaded to the victim’s house living room, floor, etc.; and (c) did not intend to spread to the victim’s house. The victim also made a statement at the police station to the same purport. Nevertheless, unlike the victim’s statement on the premise that the Defendant had a criminal intent and purpose to prevent existing buildings and fire, the lower court recognized the facts as indicated in this part of the facts charged and convicted the Defendant of the facts charged, and erred by misapprehending the legal doctrine.

B. Unreasonable sentencing

The sentence of the court below is too heavy.

2. Ex officio determination

A. The record of this case reveals the following facts.

(1) The original court served a copy of the indictment and a writ of summons by public notice in accordance with Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, and sentenced one year to imprisonment with prison labor by proceeding the trial in the absence of the defendant.

② On July 19, 2017, the Defendant asserted that the lower judgment failed to undergo a normal trial, such as requesting the recovery of the right to appeal and failing to notify the date of trial.

③ On September 21, 2017, the court recognized that the defendant was unable to file an appeal within the appeal period due to a cause not attributable to him/her, and decided to recover his/her right of appeal (2017 early 2130).

B. According to the above facts of recognition, it is recognized that there is no reason attributable to the defendant's failure to attend the trial of the court below, and this court has tried to proceed with a new litigation procedure. In this regard, the judgment of the court below cannot be maintained. Nevertheless, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of the court of this court,

3. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

A. In full view of the evidence examined in the current trial, the following facts can be acknowledged.

① In the witness investigation conducted on the day of the instant case, the victim was determined whether the Defendant was fluorous from his house. The Defendant was fluorily fluorily fluored with the Defendant’s house, and the Defendant was fluorily lided by opening a sofluor and liding drinking water. In a direct sense, the Defendant was fluorily thought that he was gasoline and fluord with his body, and was fluord with the Defendant, and the Defendant was fluord with his body. During that process, the Defendant was fluorily fluord with the Defendant, and the Defendant was fluorily fluor in the sewerage system.” At that time, the Defendant was fluorily fluort in the process of fighting with the police questioning whether the Defendant did not want to put fluor.

② The victim appeared as a witness of the trial court and reported that the Defendant was able to spread gasoline first. The Defendant stated to the effect that 5 Rater was shown from the time when the Defendant entered the court, but did not respond properly to the question asked at the police’s statement. The victim submitted to the court a diagnosis to the effect that alz suffers from the old and old dementia.

③ During the investigation conducted by the police, the Defendant: (a) died before the victim; (b) moved gasoline to a drinking bottle; (c) moved 2 gasoline to the victim’s house by setting it out; (d) the victim was unable to speak at the victim’s house; and (e) the victim was able to open gasoline in lids with the victim’s body; (b) the victim stated that the victim was fighting; and (c) in the process, the victim was able to start gasolines; and (d) the police tried to start the gasolines and then tried to start in the body; and (d) the victim was trying to see what he was on the back, and (e) the victim was intending to see.g., the victim’s mind that he was the victim’s body and his family members did not have died.

B. In light of the following circumstances revealed by the records and records, the police investigation into the victim of the crime committed by the State or a local government is conducted on the day of the case (from 15:50 to 17:30), the victim appears to have made a statement with his/her birth memory according to his/her birth memory, the defendant's behavior attitude known by the police statement by the victim's police is in substitution with the defendant's statement, and it is difficult to judge that the legal statement in the trial is credibility compared to the victim's statement in the police, considering the victim's attitude of statement and recognition ability, etc., it is reasonable to view that the defendant's body and the victim's body were fighting in the process of fighting the body of the defendant and the ward's body, not the body and the floor of his/her ward, etc., as stated in paragraph 2 of the judgment of the court below.

The defendant's assertion disputing this part of fact finding has some reasons.

3) Furthermore, as to whether there was a criminal intent and purpose of fire prevention against the defendant, the following circumstances revealed by the above recognition: (i) the defendant did not think of the victim's house; (ii) the defendant himself did not think of his body even according to the defendant's police statement; (ii) the defendant made two preparations for his body; (iii) the defendant was actually seized from the defendant (which does not correspond to the number of pages seized); and (iv) the reason why the defendant had an intention to attach the same with his body without fail, and (iii) the defendant tried not to take the drinking water of gasoline, which was used to remove the victim's body while fighting with the victim, and the defendant did not want to have his body deducted the drinking water of the defendant; (iv) the defendant did not have any sufficient reason to recognize his body from the victim's body, as a matter of course, in the absence of any fire prevention.

The defendant's assertion of this part concerning the criminal intent and purpose of the crime of prevention of existing buildings and fire is without merit.

4. Conclusion

As seen earlier, the court below reversed the judgment of the court below pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of ex officio reversal and the defendant's assertion of mistake of facts is partially justified. The judgment below is reversed, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts constituting the crime and its evidence admitted by this court are stated in the judgment below.

Fourth, lids are opened and gasoline 90 cc(C) is spreaded in their body, body, living room, floor, etc., and the victim and his family members who control it, 'the wind to cut off drinking water'. However, the victim's 90 cc(C) is changed to 'the wind to 'the wind to restrain drinking water by getting off drinking water from his body, living room, etc.', '1. The summary of evidence is as stated in each column of the judgment of the court below, except for adding 1. partial legal statement at the defendant's trial, 1. C. partial statement at the trial, and 1.C. court statement at the trial. Thus, this is accepted as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 175 and 164(1) of the Criminal Act (the occupation of the current building and fire-prevention), Articles 320 and 319(1) of the Criminal Act (the occupation of special residential intrusion)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Reasons for sentencing

The crime of this case is not very good, and it seems that the victim suffered from the crime of this case is highly sufficient mental shock, and that the defendant is ultimately unable to obtain a letter from the victim is an element of sentencing unfavorable to the defendant.

The fact that the victim made a statement to the effect that he would be in favor of the defendant when the victim was in the trial, and that the defendant has no other penalty force than the suspended sentence of imprisonment due to the violation of the Attorney-at-Law Act before 20 years, etc.

In addition, the punishment as ordered shall be determined in consideration of various conditions of sentencing known by the records, such as the age, character and conduct, environment, motive and consequence of the crime, and circumstances after the crime.

Judges

The judge of the presiding judge;

Judges Song Jae-Gyeong

Judges Park Jong-young

Note tin

1) The identity of the facts charged is not undermined and the defendant's defense right is not disadvantaged, and it is recognized as above without any changes in indictment.

심급 사건

-서울중앙지방법원 2017.6.29.선고 2016고단6905

서울중앙지방법원 2018.1.26.선고 2017노3941

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