Whether indictment is lawful (the entry of the provisions and port of the Punishment of Violences, etc. Act and the absence of entry in the criminal provisions)

In light of Article 3(1) of the Punishment of Violences, etc. Act, since it is apparent that Article 2(1) of the Criminal Act includes as part of the elements of a crime Article 2(1) of the same Act as part of the elements of a crime, it is difficult for the prosecutor to institute a prosecution for this case on the grounds that Article 3(1) of the Punishment of Violences, etc. Act stated in the indictment and Article 257(1) of the same Act omitted

Articles 3 and 2 of the Punishment of Violences, etc. Act

Supreme Court Decision 75Do363 delivered on November 23, 1976

Defendant

Prosecutor

Busan District Court (69No4258)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

The detention days prior to the pronouncement of the judgment of the court below shall be 50 days included in the original sentence.

Provided, That the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

Summary of the defendant's attorney Kim Jong-ho's appeal

1) In the instant case, the Defendant abused and injured the victim, and the Defendant did not carry a deadly weapon at the time, the lower court erred by misapprehending the fact that the Defendant had inflicted an injury on the victim by carrying a deadly weapon, and that the Defendant had committed

2) The lower court committed an unlawful act committed against the Defendant under the name of a crime for which the prosecutor was not prosecuted, and committed the offense.

3) Furthermore, the lower court’s sentencing is too unreasonable;

In full view of all the statements of the defendant in the party process and all the evidence duly admitted by the court below, the complainant can sufficiently recognize the fact that the defendant intentionally committed the act of taking a deadly weapon (Evidence No. 2) into his hand by the victim, as recognized by the court below, and the phrase that the defendant carries a deadly weapon under Article 3 (1) of the Punishment of Violences, etc. Act is sufficient by taking the deadly weapon in his hand and carrying it with him, and it is not necessary to carry it with his body in advance.

In addition, Article 3 (1) of the Punishment of Violences, etc. Act provides that Article 2 (1) of the same Act and Article 257 (1) of the Criminal Act shall be included as part of the elements of a crime, and since it is apparent that the provisions of Article 257 (1) of the same Act are included as part of the elements of a crime, the indictment cannot be deemed unlawful on the ground that the prosecutor stated only Article 3 (1) of the Punishment of Violences, etc. Act and omitted the provisions of Article 257 (1) of the Criminal Act in the indictment, and the prosecution cannot be deemed unlawful on the ground that the court below neglected the above provisions of the Criminal Act, which the prosecutor omitted in applying the law, cannot be deemed unlawful on

In light of all the circumstances shown in the records, such as the fact that the defendant was a primary offender, that the crime of this case was contingent, and that the victim has already given considerable consolation money and agreed with each other, the sentencing of the court below, which is sentenced to imprisonment with prison labor for a year, is considered to be too unreasonable. Therefore, the argument in this regard is justified.

Therefore, the judgment of the court below shall be reversed and the judgment shall be ruled again in accordance with Article 364 (6) of the Criminal Procedure Act.

Criminal facts recognized as a member of the party and its evidence theory are the same as those of the court below, and they are cited in this case.

From the perspective of the law, the defendant's original conviction falls under Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act. Since there is a reason to take into account the circumstances of the crime, the defendant shall be punished by imprisonment for one year within the scope of the term of punishment that has been reduced by discretionary mitigation pursuant to Articles 53 and 55(1)3 of the Criminal Act, and the defendant shall be punished by imprisonment for 50 days during the period of detention before the sentence of the judgment below pursuant to Article 57 of the Criminal Act, and the execution of the above sentence shall be suspended for three years from the day when the judgment of the court below became final and conclusive pursuant to Article 62 of the Criminal Act.

It is so decided as per Disposition.

Judges Kim Tae-tae (Presiding Judge)