Defendant

Defendant

Chang-gu Office

Law Firm Davia, Attorneys Park Labor-won et al.

Seoul Western District Court Decision 2009No2113 Decided March 31, 2010

The judgment of the court below is reversed.

All of the main and ancillary public prosecutions of this case are dismissed.

1. Summary of the grounds for appeal;

The judgment of the court below that found the defendant guilty of the facts charged of this case by misunderstanding the facts and misunderstanding the fact that the defendant did not have any string on the left-hand side of the victim, which is a dangerous article, as stated in the facts charged of this case, even though the defendant did not have any string on the victim's left-hand side.

2. Determination

A. Ex officio determination

Before determining the Defendant’s grounds for appeal, the prosecutor, ex officio, had examined the facts charged in this case, and the prosecutor applied for amendments to the indictment as stated in Section 2-A of “The Judgment,” which added the same contents as the facts charged in the instant case as the primary facts charged, as the ancillary facts charged, and the judgment of the court below was no longer maintained on the ground that the subject of the judgment was changed by this court’s permission.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of the court, even though the above ground of misunderstanding of facts exists.

B. Judgment on the defendant's assertion of mistake of facts

(1) Summary of the facts charged in this case

On June 20, 200:40 on June 20, 2009, the Defendant: (a) stated that “○○○○○○○” main store located in Mapo-gu Seoul, Mapo-gu, Seoul, demanded the calculation of the drinking value; (b) the victim Nonindicted 4 (man, 48 years of age) who is an employee; (c) took a bath to “Yejin-gu, Chewing, Chewing,” and laid down the glass World Cup on his customer by gathering it in his hand; (d) took dangerous goods into the left side of the victim’s head; and (e) took the victim’s head fright, booms the victim’s head fright; and (e) took part in the victim’s head fright, and (e) took part in the victim’s head fright, which requires the victim’s treatment for about four weeks, and (e) took part in the victim’s left side.

(2) The judgment of the court below

The lower court found the Defendant guilty of the primary facts charged in the instant case with the entries in the statement, diagnosis, written agreement, and copy of the medical record of Nonindicted 4’s written statement, each of the images of each photograph, etc. as evidence.

(3) Judgment of the court below

In the court below and the court below, the defendant denies that there is no injury to the victim as stated in the main facts charged of this case. Accordingly, there is only the defendant's statement in the prosecutor's protocol of interrogation of the defendant against the defendant, the statement of the police's protocol against the non-indicted No. 4, the statement of the prosecutor's protocol of interrogation of the defendant, the statement of diagnosis, written agreement, and copy of the medical record, and each photograph of each

However, the statement of the prosecutor's protocol on interrogation of the defendant against the defendant is merely the purport that it would be satisfied if the victim was under the influence of alcohol, but the victim was her due to the act of the defendant, and it is difficult to view that it was completely led to the crime of this case. Therefore, it is insufficient to recognize that the defendant suffered injury to the victim by the method as stated in the

Then, Non-Indicted 4's statement at the police investigation stage is as follows: ① the victim's non-indicted 4 was investigated by the police station on the day of the instant case, she was released on his/her face so that he/she can easily see the victim's face with the view of the fact that the victim's statement was put out of the front door and the front door of his/her face, and it was hard to see that the victim's statement was put out of the front door to the front door of the instant case without any reasonable consideration because he/she got out of the front door of the instant case; ② The victim's statement was frightly frighted to the victim's behavior, and the victim's statement was frightly frighted to the victim's face at the time of the instant case; ② The victim's statement was frighted to the victim's face at the time of the instant case, and it was hard to say that the victim's statement was frighted to the left part of the instant case's face without any reasonable consideration.

In addition, it is difficult to believe that the part of the written agreement stating the purport that the victim was killed in the glass cup is one of the unilateral arguments of the victim in light of the above circumstances, and it is insufficient to recognize that the defendant injured the victim in the same way as the entries in the primary facts charged of this case (the copy of the written diagnosis and the written medical record only states that the victim simply saw her to face the glass cup, and there is no evidence to support it differently, such as the facts charged in the primary facts charged of this case.

The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction should be based on evidence with probative value sufficient to confluence that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, the interests of the defendant should be judged. In this case, the victim non-indicted 4 stated that he sold his own left-hand side in the initial police investigation stage as the same circumstance as the surrounding facts charged, and the victim stated that the agreement prepared by the defendant was committed against the defendant, and it is difficult for the victim to receive medical treatment, and it is hard for the victim to make a statement to the doctor that he took advantage of the favorable cup, and therefore, it is not necessary for the court below to acknowledge that the victim's act was frightped by the defendant, and that the victim's statement was made in the same manner as the above facts charged was not the only one of the above facts charged but the victim's statement was made in favor of the defendant.

Therefore, although the facts charged above should be judged not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, the judgment of the court below that found the defendant guilty of the above facts charged is erroneous in the misapprehension of law that affected the conclusion of the judgment. Thus, the defendant's allegation pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is decided as follows.

【Discretionary Judgment】

1. Judgment on the primary facts charged in this case

The gist of the facts charged in the facts charged in this case is as described in Article 2-2 (b) (1) of the above, and the fact that the part of the victim's left-hand side, which is a dangerous article of the defendant, was put to a knife the part of the victim's left-hand side, which requires about four weeks of treatment, is not punishable as a crime of violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.) since it constitutes a case without proof of a crime for the same reason as stated in Article 2-2 (b) (3) of the above. However, there is only a room to establish a crime of assault as to the fact that the defendant's hand marks the victim's head and siffs the victim's head and siffs the victim's head.

However, the crime of assault cannot be prosecuted against the express will of the victim under Article 283(3) of the Criminal Act. According to the written agreement bound in the investigation records, it can be acknowledged that the victim explicitly expresses his/her intention not to punish the defendant on July 17, 2009, which is prior to the institution of indictment of this case. Thus, the primary indictment of this case constitutes a case where the procedure for institution of indictment is null and void in violation of the provisions of Acts.

Therefore, the main public prosecution of this case is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act.

2. Judgment on the ancillary charges of this case

A. Summary of the facts charged in the instant case

The Defendant, at the time and place of the facts charged above, expressed a bath that Nonindicted 4 demanded the calculation of the drinking value on the ground that the victim Nonindicted 4 demanded the alcohol value, and she saw the glass World Cup on his/her client’s hand, and she faced with the wall by gathering the head of the victim’s hair, and she faced with the wall, and the shoulder glass view she faced with the victim’s left body, and she sleeped with the victim’s head, and led the victim by drinking the head of the victim’s head, and caused the victim’s hearts on the left body for about four weeks.

B. Determination

First of all, among the ancillary facts of this case, it is argued that the defendant used the glass World Cup on the consignee of this case on the day of this case as the victim's head, faced with the wall, and the glass string was faced with the wall, and the victim suffered about four weeks of the left part of the victim's left part, and the victim suffered about 4 weeks of treatment, etc., the defendant denied that there is no fact that the defendant did not inflict an injury on the victim as stated in the ancillary facts of this case in the court of the first instance. Accordingly, the evidence consistent with this part of this case is limited to the witness's statement, diagnosis, copy of medical records, and each image of each photograph.

그런데 증인 공소외 4의 당심 법정에서의 진술은, 앞서 ‘항소이유에 대한 판단’에서 설시한 사정들, 즉 피해자의 진술이 합리적인 이유 없이 계속하여 번복되는 점, 이 사건 당시 동석하였던 공소외 3, 1, 2의 진술이 피고인의 주장에 부합하는 점에다가, 기록에 의하여 알 수 있는 다음의 사정들, 즉 피해자가 입은 상해의 부위는 좌측 전완부 바깥쪽으로서, 피고인이 벽을 등지고 있던 피해자에게 던진 유리컵이 벽에 부딪혀 깨지면서 그 파편이 튀어 다친 것이라면 그 상해의 부위는 팔의 ‘안쪽’ 부위 등이 되어야 자연스러울 것인데도, 피해자가 벽으로부터 튄 유리컵 조각에 팔 ‘바깥쪽’ 부위를 맞았고, 또 다른 곳은 맞아 다친 데가 전혀 없다는 것은 아주 이례적으로 보이는 점, 피해자는 당시 좌측 전완부 신전건 및 척골 신경에 부분 파열이 일어날 정도로 깊은 상처를 입었고, 치료과정에서 40여 바늘 봉합술까지 받았다는 것이므로 벽에서 튀어 날아온 유리컵 조각에 의해 다쳤다고 단정하기에는 상해의 정도가 지나치게 중해 보이는 점 등을 보태어 보면, 이를 도저히 그대로 믿기 어렵다.

In addition, it is not sufficient to recognize that the defendant injured the victim in the same manner as the entries in the preliminary facts charged in this case only with each description of written agreement, medical certificate, and copy of medical records, and each image of each photograph, and there is no sufficient evidence to acknowledge otherwise.

Therefore, this part of the facts charged also constitutes a crime of violation of the Punishment of Violences, etc. Act (a collective action, deadly weapon, etc.) and cannot be punished for the defendant as it constitutes a case without proof of a crime. However, there is room for only the crime of assault as to the fact that the defendant injured his/her head by his/her hand, and when he/she gets the head of the victim by drinking. However, the crime of assault cannot be prosecuted against the victim's express intent under Article 283(3) of the Criminal Act, and the facts that the victim explicitly expressed his/her intention that he/she would not want the punishment of the defendant on July 17, 2009, before the prosecution of this case is instituted are as seen earlier. Thus, the preliminary prosecution of this case also constitutes a case where the procedure of indictment of this case is null and void in violation of the

Therefore, the preliminary prosecution of this case is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges' engine displacement (Presiding Judge) at a fixed time