2017No2351 Violence (a recognized crime name assault)

A

Both parties

The root (prosecution) and Kim Jong-Un (Trial)

Attorney L (Korean national ship)

Seoul Southern District Court Decision 2017Gohap50 Decided July 21, 2017

February 1, 2018

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. The defendant (e.g., unfair form)

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable.

B. Prosecutor (misunderstanding of legal principles as to acquittal of the reasoning of the lower judgment)

In light of the court below's records and degree of the Defendant's assault, witness's statement, witness's statement, witness's statement, victim's condition at the time of committing the instant crime, and the place of committing the instant crime, etc., it should be deemed that the Defendant could have sufficiently anticipated the death of the victim due to the Defendant's assault. Nevertheless, the court below found the Defendant not guilty of the facts charged of the instant assault death and injury, and judged that the Defendant was guilty of the only crime of assault. In so doing, the court below erred by misapprehending the legal principles on predictability, etc.

2. Determination

A. As to the prosecutor's assertion of misapprehension of the legal principle

The lower court found the Defendant not guilty of the facts charged of assault and death of this case by adopting a verdict of innocence issued by seven jurors by unanimous decision-making through a participatory trial.

원심이 적법하게 채택한 증거에 비추어 배심원의 평결이 잘못되었다고 볼 수 없고, 당심증인 H. G의 각 진술(H는 당시 화장실에 갔다 오니 피해자가 넘어져 있었다는 취지로 진술하였고, G는 '퍽' 소리를 듣고 쳐다보니 술에 취한 채 피고인에게 시비를 걸던 피해자가 넘어져 있었다는 취지로 진술하였는바, 이들 모두 피고인이 피해자를 가격한 순간 및 피해자가 넘어지는 모습을 직접 목격하지는 못한 것으로 보인다) 및 당심의 국립과학수사연구원에 대한 사실조회 회보서를 살펴보더라도, 원심의 판단에 명백히 반대되는 충분하고도 납득할 만한 현저한 사정이 있다고 보이지 않는다1).

Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles as alleged by the prosecutor, and thus the prosecutor's ground of appeal cannot be accepted.

B. As to the Defendant’s assertion of unreasonable sentencing

In examining the circumstances and results of the crime of this case, the sentencing conditions under Article 51 of the Criminal Act, which are shown in the records and arguments of this case, including all favorable circumstances and unfavorable circumstances to the defendant, including the defendant's criminal records, whether the defendant's consent has been reached with his bereaved family members, and the degree of reflectivity of the defendant, etc., and the sentencing guidelines set forth in Article 51 of the Criminal Act, the sentencing guidelines set by the Sentencing Commission of the Supreme Court, the sentencing guidelines set by the court below, and the sentencing opinion based on the sound common sense and reasonable judgment of the jurors (two years of imprisonment: five years of imprisonment, five months of imprisonment, and two months of imprisonment) expressed in the sentencing process set forth in the court below, the court below's sentence of the defendant is too unreasonable. Accordingly

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor 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.

The presiding judge or higher judge;

Judges Shin Jae-ok

Judges, Vice-Presidents

1) The so-called crime of death by assault, etc. is a so-called as a so-called aggravated crime of assault and death, i.e., the predictability of the result of death, in addition to the causal relationship between the consequence of assault and death, i.e., negligence, and the existence of such predictability ought to be strictly conducted by examining specific circumstances, such as the degree of assault and the response status of the victim, and by expanding and interpreting the scope of predictability, Article 15(2) of the Criminal Act excluding the intent of harmonizationing the principle of liability with the result aggravated crime, thereby falling short of the limitation of liability for negligence (see, e.g., Supreme Court Decision 90Do1596, Sept. 25, 1990). Meanwhile, the finding of guilt should be based on evidence of probative value that leads to a judge’s conviction of the facts charged to the extent that there is no reasonable doubt, even if there is no such evidence, it is no choice but to determine the profits of the defendant even if there is a doubt against the defendant (see, e.g., May 24, 2004).