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The defendant was prosecuted with the fact that the defendant avoided the defendant while reporting the defendant's streke and his her son's son's son's son's son's son's son's son's son's son's son's son.

The case affirming the conclusion of the first instance judgment that acquitted the Defendant on the ground that the act of the Defendant constituted an assault with the criminal intent of an unlawful assault as stated in the crime of assault, in full view of the following: (a) it is difficult to conclude that the above act of the Defendant constituted an assault with the criminal intent of an unlawful assault as stated in the crime of assault, and (b) it is difficult to conclude that the above act of the Defendant constitutes an assault with the criminal intent of an unlawful assault, on the ground that the illegality is denied in the scope of “act not contrary to social rules” as stipulated in Article 20 of the Criminal Act, on the ground that the illegality is eliminated in the scope of “act not contrary to social rules” stipulated in Article 20 of the Criminal Act.

Articles 20 and 260(1) of the Criminal Act; Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Seo-won et al. and one other

Attorney Kim Ho-ho

Ulsan District Court Decision 2018 High Court Decision 2018 High Court Decision 619 decided November 30, 2018

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

According to the victim's statement, the defendant committed violence by cutting off his/her own arms from the victim's own arms in order to prevent the victim from reporting his/her legitimate 112, and the above act did not meet the requirements such as legitimacy of motive, reasonableness of means, urgency, and supplement. The judgment of the court below which acquitted the defendant of the facts charged in this case, is erroneous in the misapprehension of legal principles as to the premise that a legitimate act is established.

2. Determination

A. The summary of the facts charged in the instant case is as follows: “The Defendant: (a) around 06:20 on March 17, 2018, at the residence of the Nonindicted Party in the ○○○○ apartment, ○○○○○, △△△, △△, △△, △△△, the Defendant reported that the victim, who was the Defendant’s scam, did fighting with the Defendant’s her mother and her husband; and (b) avoided the Defendant, and assaulted both arms of the victim.”

B. Assault as referred to in the crime of assault means the exercise of physical or mental pain on a human body. It does not necessarily require any contact with the victim’s body. The illegality should be determined by comprehensively taking into account the purpose and intent of the act, circumstances at the time of the act, mode and type of the act, existence and degree of pain inflicted on the victim, etc. (see, e.g., Supreme Court Decision 2016Do9302, Oct. 27, 2016). Furthermore, in criminal trials, criminal facts must be recognized as strict evidence having probative value to the degree of conviction that the judge has no reasonable doubt. Thus, if a prosecutor fails to prove to the extent that the prosecutor has a sufficient conviction, even if there are circumstances, such as the defendant’s assertion or defense is inconsistent or unreasonable, and there is suspicion of guilt, it should be determined as the defendant’s interest (see, e.g., Supreme Court Decision 2012Do2311, Jun. 28, 2012).

C. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, i.e., ① the defendant moved the victim and the defendant's children to the scene of this case where the victim and the defendant's children were living in order to arbitrate the dispute, ② the defendant's speech was high due to the victim's desire to do so, ② the defendant's speech was high, and the victim's movement was reported to the police, and ③ the victim reported to the police outside of the house and reported it to the police, it is reasonable to conclude that the act of the defendant as stated in the facts charged of this case constitutes an unlawful crime of violence, and further, the above act does not violate the social rules stipulated in Article 20 of the Criminal Act, and thus, the conclusion of the court below's conclusion is justified.

3. Conclusion

Therefore, the prosecutor'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.

Judges Kim Jong-gu (Presiding Judge) Kim Jong-sung