The case where the facts of the crime and the applicable Acts and subordinate statutes are only stated in the grounds of conviction, but the summary of evidence proving the facts of the crime has been omitted and the case has been reversed

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance and still convicted the defendant, and omitted the summary of the evidence proving the facts constituting the crime and the applicable Acts and subordinate statutes, which constitutes a crime committed without any evidence, and thus, the court below erred by recognizing the facts constituting the crime or by misapprehending the reasoning.

Articles 323 and 396 of the Criminal Procedure Act

Supreme Court Decision 80Do927 Delivered on November 11, 1980

Defendant

Defendant

Seoul Criminal Court Decision 86No5375 delivered on November 5, 1986

The lower judgment and the first instance judgment are reversed.

Defendant shall be punished by a fine of KRW 100,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 5,000 into one day.

Two seized swords (No. 1) shall be forfeited from the accused.

The grounds of appeal are examined.

Guns and Swords.Article 2(2) of the Powders Control Act (referred to as "swords" in this Act means those prescribed by the Presidential Decree from among those with a high risk of being used as lethal weapons in light of their nature, such as knife, knife, hold, City/Do, and rain trees, of which the knife length is not less than 15 centimeters long, and which are clearly likely to be used as lethal weapons even if the knife length is less than 15 centimeters long). Article 4(1) of the Enforcement Decree of the same Act of the same Act provides that swords as prescribed by Article 2(2) of the Act shall not be considered as swords under paragraph 1 of the same Article, which list a monthly, long map, short map, inspection, etc., and are listed on the knife and knife of the knife in paragraph 3 of this Article.

In accordance with the records of this case, it can be recognized that the length of the knife is 53 centimeters and the body is 53 centimeters and the end of the knife is not clear. The court below is just in deciding that the knife is a swords as prescribed by Article 2 (2) of the Powders Control Act, and there is no misapprehension of the legal principle that points out the theory of lawsuit (the knife is completely different from the pictures of the knife).

However, according to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance and recognized the defendant as still guilty, and omitted only the facts constituting the crime and the applicable statutes, and it constitutes a crime of which the court below acknowledged the facts of the crime or erred in the reasoning for lack of evidence. Therefore, the judgment of the court below cannot be reversed because it cannot be maintained in this respect, and it is sufficient to render a judgment based on the records of the case and the evidence investigated up to the court below, and therefore, it shall be decided directly by the party members pursuant to Article 396 of the Criminal Procedure Act.

According to the records, since the facts charged and applicable provisions of this case were changed through legitimate procedures in the court below, the judgment of the court of first instance which was tried and judged on the premise of the facts charged before the change and applicable provisions of Acts cannot be maintained, and it is reversed and decided as

(Criminal Facts)

From August 1984 to August 1985, the Defendant displayed two swords (76cm in total length, 53cm in width, 7cm in width) at the upper point of the Defendant’s management located in Dongbacheon-si (hereinafter omitted) in Dongbacheon-si, 1985, without obtaining permission from the authorities, and carried them.

(Abstract of Evidence)

The facts of the judgment

1. Statement corresponding thereto in the first instance court and the original trial court;

1. Compliance with the suspect examination protocol prepared for handling affairs by judicial police officers;

statement or statement

1. In full view of the existing facts, etc. of two swords (No. 1) seized, it may be sufficiently recognized;

(Application of Acts and subordinate statutes)

The so-called "sknife" in the law is a gun. knife that falls under Articles 70 and 12 (1) of the Powders Control Act, and thus, the defendant shall be selected from among the prescribed penalties, and the defendant shall be punished by a fine not exceeding 100,000 won, and if the above fine is not paid pursuant to Articles 69 (2) and 70 of the Criminal Act, the defendant shall be detained in the old house for a period of 5,00 won converted from the day to 5,00 won, and the two seized swords are articles provided for the crime in the judgment, and are owned by others, so they shall be confiscated from the defendant pursuant to Article 48 (1) 1 of the Criminal Act. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Dal-sik (Presiding Justice)