2016No133 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)

A person shall be appointed.

Defendant

or more of the people (prosecutions) and the highest beneficiary (public trial)

Attorney B, C

Gwangju District Court Decision 2015Dadan2732 Decided December 23, 2015

May 3, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. Summary of grounds for appeal;

(a) Mental illness;

The Defendant was in a state of mental disability due to shock disorder at the time of committing the instant crime.

B. Unreasonable sentencing

The sentence of the lower court (one year and six months of imprisonment) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant was made ex officio, the prosecutor applied for the amendment of the indictment with the contents of Article 5-4(5) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act as "Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act". Since the court permitted this and changed the subject of the judgment, the judgment of the court below can no longer be maintained.

Although there is a ground for ex officio reversal, the above argument by the defendant is still in this court.

Since it is subject to the judgment, it is necessary to examine this.

3. Determination as to the claim of mental disability

The phenomenon of suppressing a crime due to failure to suppress one's impulse is likely to be found even for the normal person. Thus, barring special circumstances, it cannot be deemed that a person who has such character defect requires an act that is not expected to suppress one's impulse and to demand compliance with the law, and as a matter of principle, it is reasonable to deem that the same character defect as the impulse disorder does not constitute a mental disorder, which is the reason for reduction or exemption of punishment. However, even if the defect is of the same nature as the impulse disorder, if it is very serious and it can be deemed that it is equal to the person who has originally had mental disorder within its original meaning, the crime caused by mental disorder shall be deemed a crime (Supreme Court Decision 2008Do9867 Decided February 26, 2009).

The Defendant committed a crime in the three instances indicated by the lower court in which both the lower court and the lower court committed a crime in the state of changing things or lacking the ability to make a decision due to military register walls, etc., and thus, was subject to mitigation of mental or physical disability under Article 10(2) of the Criminal Act. Meanwhile, on April 29, 2015, the Defendant released the Defendant after having been sentenced to imprisonment on April 29, 2015, and released the Defendant from the post on July 28, 2015, with symptoms, such as serious anxiety, depression, paralysis, degradation of desire, and degradation of memory, etc., as “easy disability,” and received medical treatment and counseling treatment.

However, according to the result of the mental appraisal of the defendant conducted by the court below, the defendant was diagnosed in the mental condition examination as "the food was clear, the remaining forces were normal, and the emotional well-known situation was high, but it was consistent with the contents of the accident. However, the interference with the accident process and the accident contents was not observed. There was no stimultive disorder, such as a stimulation or stimulation, and the head and short-term memory was good, and there was no impediment to the overall real judgment ability," but was diagnosed as being relatively sound at the time of the crime of this case that there was no obstacle to the judgment of the actual reality.

Ultimately, considering these circumstances in light of the legal principles as seen earlier, even if it is very serious and it can be evaluated as equal to a person with mental disorder within the original meaning, it can be recognized as a crime due to mental disorder only when there are circumstances of a special group that can be evaluated as equal to the person with mental disorder within the original meaning. Although the defendant has been subject to mitigation of mental disorder in the previous judgment, it is difficult to accept the defendant's assertion on the grounds that the defendant's mental evaluation conducted most recently in the previous judgment was the most recent mental evaluation that the defendant suffered from mental disorder, but the defendant'

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as shown in each corresponding column of the judgment of the court below, and therefore, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 329 of the Criminal Act.

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, the proviso to Article 50, and Article 42 of the Criminal Act [the punishment shall be aggravated within the limit provided for in the proviso to Article 42 of the Criminal Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) concerning a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (Article 55(1)3 of the Criminal Act)

The market price of the stolen goods with the reason for sentencing has not been much than 750,000 won, and all damages have been recovered.

In addition, it is difficult to evaluate that the defendant has reached a state of mental suffering, but it appears that the defendant affected the crime of this case to a certain extent, such as uneasiness, depression disorder, etc. suffering from the defendant, and since the minimum statutory punishment of the crime of this case has been reduced from 3 years to 2 years due to the prosecutor's changes in the indictment, this change in legal evaluation of habitual larceny is also to be newly reflected in the sentencing decision in this case. In addition, all kinds of sentencing conditions indicated in the records and arguments of this case, such as the defendant's age, character and behavior, circumstances after the crime, etc., are considered as the sentencing condition. Although rejecting the claim of mental suffering, it is possible to determine the punishment like the order through discretionary mitigation, taking into

Judges Kim Young-sik

Sickhos

Reinforcement of Judges