2015Gohap404 Injury by violence (the name of the changed crime resulting from death or injury, and the name of the recognized crime)

A person shall be appointed.

Edemathers (prosecutions), Lee In-bok (Public Trial)

Attorney △△△ (Korean Office)

April 8, 2016

A defendant shall be punished by imprisonment for not less than six months.

except that the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Punishment of the crime

On August 27, 2013: around 10: Around 10, the Defendant, under the influence of alcohol in the Dong-dong-dong-dong-dong-dong-dong-gu (57 years of age), was able to see whether the Defendant was demoted, but was her to her part of the river that the Defendant was under the influence of, but was not her part of, her part of the river that the Defendant was under the influence of, and the Defendant was her part of, the victim.

However, while the victim fights with the defendant on the front side of the same 00 footpers, the defendant was assaulted by the victim on his/her breast part by his/her hand.

Summary of Evidence

1. Entry of the defendant in part of the trial records of the first and nine times;

1. The statements made by C witnesses and D in the ten-time trial records;

The defendant alleged that the victim did not keep the victim at the time when the victim was used on the floor. However, according to the witness C's statement, the defendant was found to have pushed the victim at the time.

1. Statement to E by the police;

1. On-site photographs;

Application of Statutes

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

Article 260(1) of the Criminal Act (Selection of Imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions among the Reasons for Sentencing)

1. The grounds for sentencing: Imprisonment with prison labor for one month to two years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Type] Category 1 (General Violence)

[Special Mitigation] In a case where the degree of assault is minor

[Scope of Recommendation] Imprisonment from one month to eight months (Reduction Area)

3. The crime of this case committed by the sentence decision is a case in which the defendant was in a dispute with the victim, and even if the defendant could not anticipate the death of the victim as seen below, the defendant's assault resulting in a result of the death of the victim, which led to the death of the victim, is disadvantageous.

On the other hand, the fact that the victim seems to have caused the occurrence of the instant case by provoking the trial cost without any particular reasons, and that the extent of the Defendant’s assault seems to be relatively minor is favorable.

In addition, the defendant's age, character and conduct, environment, family relationship, circumstances after the crime, and various conditions of sentencing specified in the arguments of this case shall be determined as ordered in comprehensive consideration.

The acquittal portion

1. Summary of the facts charged

The Defendant assaulted the victim as stated in the facts of the crime in the judgment of the lower court, and the head head was faced with the asphalt floor on November 13, 2013: around October 10, 2013: Around 00 convalescent hospitals located in Gwangju North-gu, Gwangju, caused the death of the victim due to brain damage.

2. Determination on the predictability

As a result of the so-called crime of death by assault, in addition to the causal relationship between the consequence of assault and death, there should be negligence, i.e., predictability of the result of death. The existence of such predictability should be strictly determined by taking into account specific circumstances, such as the degree of assault and the response of the victim. By expanding and interpreting the scope of predictability, Article 15(2) of the Criminal Act pointing out the purport of harmonizationing the principle of liability with respect to an aggravated crime as a result, thereby extending criminal punishment beyond the limit of liability for negligence should be damaged (see, e.g., Supreme Court Decision 90Do1596, Sept. 25, 190).

Examining the following circumstances that can be recognized through the evidence and pleading duly adopted and examined by this court in light of the aforementioned legal principles, it is difficult to view that the evidence presented by the prosecutor alone was sufficiently proven to the extent that the defendant could have predicted the death of the victim.

① At the time of the instant case, the Defendant was suffering from the sediment culatory culpitis through a sulke for about 75 years of age and over 30 years of age, and on January 8, 2014, around 5 months of the instant case, the Defendant received emergency culpary culpary and sulpary culpary culpary culpary culpary culpary culption (Evidence 1 and 2) upon an urgent culpary culpary culping culption. On the other hand, even though the victim was under the influence of alcohol at the time of the instant case, there was no evidence to deem that there was a special disease or special transfer with a male aged 18 years of age and older than the Defendant, even if there were such circumstances, it is difficult to view that the Defendant, who had no human exchange with the victim of ordinary c

② At the time of the Defendant’s assault, the witness C, who appeared in the situation, from the investigative agency to the instant court, had the victim take arms against the Defendant andnoyed, and the Defendant went beyond the Defendant’s unbrupt force to sing the victim in order to spread this. According to this, the degree of the Defendant’s assaulting the victim seems to have ordinarily been in a century to the general public. Therefore, even though the victim was under the influence of alcohol, it is very exceptional that the Defendant, who was 75 years of age, did not go beyond the other party and died on the floor of the head when the Defendant exercised the physical force above.

③ According to the statements and the images of the witness D’s statement in this Court, the victim seems to be faced with his head on the ground after going through or suffering from her own typology. However, the witness C, at the time of assault, appeared to be “at the time of the instant accident, at the time of the instant accident, he stated that the witness C was unable to take the fighting on the floor at the time of the instant accident. In light of this, it is probable that the Defendant, who was in the state of fighting with the victim, was in the state of spath and spathing, was unable to recognize that the victim was on the floor at the time of the instant accident. (In this court, the witness D thought that “the victim was on the front side of the instant accident, and the spathing would have been on the back of the accident scene, and that it would have been difficult to readily conclude that the witness D knew that there was any other witness on the spot even if the Defendant had known that there was an accident to prevent parking at the scene.”

If the defendant did not recognize the existence of a different from the other on the floor, it is reasonable to view that at the time of the assault, the victim was unable to expect that the victim followed the other on the floor or was faced with the head on the ground, and that the victim was also faced with the head on the ground (for the same reason, there is no predictability about the result of the bodily injury resulting from assault included in the above facts charged).

3. Conclusion

Thus, the facts charged of this case should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime. However, as long as the defendant is found guilty of assault as stated in the above facts charged, this part of the facts charged shall not be

Judges Lee Sang-hoon

Judges Lee Lee Jae-hoon

Judge Dok-un