2013No1941 Injury

A

Both parties

Park Jong-chul(prosecution), Choi Plil(Public Trial)

Attorney L (Korean national ship)

Busan District Court Decision 2013Ma257 Decided June 13, 2013

May 1, 2014

The judgment of the court below is reversed.

The defendant is not guilty. The summary of the judgment of this case shall be published.

1. Summary of grounds for appeal;

(a) A prosecutor;

The sentence of the lower court (a fine of three million won) is too unhued and unreasonable.

B. Defendant

(1) misunderstanding of facts

Although the defendant did not inflict any injury on D, the court below which found him guilty of the facts charged of this case has erred by misunderstanding the facts and affecting the conclusion of the judgment.

(2) Unreasonable sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

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

First, I will examine the defendant's argument of mistake of facts.

A. Summary of the facts charged in this case

On January 2012, the Defendant leased part of the first floor in Busan, which was owned by the Defendant on the condition that he would be paid KRW 600,000,000 monthly rent of KRW 7 million from the victim D (the age of 51), which was owned by the Defendant, and there was a dispute over the problem that the repair cost was not paid to the victim even though the Defendant was demanded by the victim to repair the common floor toilets of the above building.

At around 16:30 on July 25, 2012, the Defendant heard the victim’s words “E” on the front side of the above building, “E while giving repair costs” from the victim, and told the victim “this weather and the year that caused the death of the victim”, and caused the victim to go beyond the floor.

As a result, the Defendant suffered injury to the victim, such as pressure duplicating 12 times in 12 weeks of treatment.

B. The judgment of the court below

The lower court convicted the Defendant on the ground that it is recognized that the Defendant inflicted a bodily injury on D according to the witness D, F, and G’s legal statement, the death diagnosis statement, and the investigation report (the statement hearing report on the intention of issuing the injury diagnosis report).

C. Judgment of the court below

(1) The evidence as shown in the facts charged in the instant case is the witness D and G investigative agencies, the legal statement in the original instance and the trial court, the witness F investigative agencies, the legal statement in the original instance, the injury diagnosis, and the investigation report (to hear the statement of the intention to issue the injury diagnosis). The above evidence is difficult to believe for the following reasons.

① In relation to the time of crime, F stated that “16:30 minutes have elapsed since the occurrence of the incident” in the court of original instance, “The time of receipt of the 119 declaration related to this case was 17:01 on July 25, 2012, the time of receipt of the 112 declaration was 17:04 on the same day, and 17:08 on the same day (106 pages of investigation records),” while J at the same time stated “4-5 minutes after the arrival of the defendant and the victim,” at the investigative agency and the court of first instance, it appears that it was difficult to see that the Defendant and the victim were able to have carried out an artificial drinking-related emergency medical service, such as 16:30 days after the arrival of the case, and 17:0 days after the arrival of the patient at the time, and that it was 16:0 days after the arrival of the patient at the time.” However, it was difficult to see that the Defendant and the victim were able to 160 days after the arrival.

④ At the trial, D maintained the statement that “in the previous time of the instant case, there is no pain, etc., and no medical treatment has been performed.” However, according to the fact inquiry reply (Evidence Nos. 5 through 7) by Ma Council members, Native Council members, and the hospital submitted to the trial, D suffered from her alley marism even before the instant case, and had medical capabilities due to multiple times of her pain pains, etc., it is difficult to conclude that there exists a causal relationship between D’s injury as stated in the above injury diagnosis certificate and the instant injury.

⑤ The Defendant’s statements in D, G, and F are not only consistent, but also consistent in relation to the portion at which the Defendant had sold D’s elbow.

(2) Therefore, it is difficult to view that the Defendant exercised the force of force against D on July 25, 2012, “16:30, the time indicated in the facts charged in the instant case,” and thus, the Defendant should have been acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because there is no evidence of the crime. However, the lower court which found the Defendant guilty of this part of the facts charged in this case erred by misapprehending the facts and adversely affecting

3. Conclusion

Therefore, since the defendant's assertion of mistake of facts against the judgment of the court below is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after pleading. The summary of the facts charged in this case is as stated in Article 364 (2) of the Criminal Procedure Act, and the facts charged in this case is judged not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant pursuant to Article 58 (2) of the Criminal Act, since the facts charged in this case is a case without proof of crime.

The judges of the presiding judge;

Judges Lee Hong-hoon

Judges 000

1) The prosecutor's approval to amend the Bill of Indictment to the effect that the time of the crime of this case was changed from 16:30 to 17:00 on the date of the second trial of the court below.

A. The court of the trial, however, held that "the case goes beyond the scope of identity of the facts charged that gives disadvantage to the defendant's defense right."

It accepted the above application for modification of Bill of Indictment and rejected it.