2012No821 Violation of the Punishment of Violences, etc. Act (joint confinement)

A person shall be appointed.

Defendant

On the port date (prosecutions) , Jink (Public Trial)

Attorney Kim Jong-young (Korean National Assembly Line)

Ulsan District Court Decision 2012Ma1807 Decided November 14, 2012

March 22, 2013

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal;

A. Error of mistake

According to B’s request, the Defendant was found guilty of the facts charged in this case, even though he did not arrest the victim in collusion with B and did not intend to do so, the lower court found the Defendant guilty of the facts charged in this case. The lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

In light of the overall circumstances of this case, the sentence (a fine of KRW 700,000,000, etc.) imposed by the court below is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of fact

In relation to co-processing two or more persons as co-offenders, there is a combination of two or more persons to realize a crime by jointly processing crimes. Although there was no process of the whole conspiracy, if there was a combination between several persons, it shall be established. If the defendant acknowledged the facts directly involved in the act of the crime and denies the criminal intent, the facts constituting such subjective element shall not be proven by the method of proving indirect facts which are relevant to the criminal intent, and what constitutes an indirect fact which is considerably related to the defendant's 4th, it shall not be decided 5th, based on normal empirical rule, at least 44 times as to which the defendant tried to have been forced to keep the defendant's vehicle into custody and 5th, and at least 5th, as to which the defendant had been forced to keep the defendant's vehicle into custody and 4th, it shall be decided that the defendant was forced to keep the defendant's vehicle into custody and 5th, and it shall be decided that the defendant had been forced to keep the defendant's vehicle into custody and 4th, as evidence.

B. Determination on the assertion of unfair sentencing

Although there are favorable circumstances, such as the fact that the defendant committed the crime of this case at the request of the victim, and the victim does not want the punishment of the defendant, the court below has reduced the amount of punishment more than the initial summary order in consideration of such circumstances.

Considering the fact that the Defendant appears to have been sentenced to punishment for a violation of the Punishment of Violences, etc. Act, the Defendant again committed the instant crime even though he/she had the record of serving several times due to the Defendant’s violation of the Punishment of Violences, etc., and other overall sentencing conditions, including the Defendant’s annual order, character and conduct, environment, and circumstances after the commission of the crime, the lower court’s sentence cannot be deemed unfair, and thus, this part of the Defendant’s

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Justices Kim Dong-young

Judges Kim Jong-jin

Judges Sung-man