(영문) 서울고등법원 2018.12.12.선고 2018노2511 판결

At the time of committing the instant crime, the Defendant was in a state of mental and physical disability due to symptoms such as cerebrovascular, spawn-in disease, patrins, and pa

B. Unreasonable sentencing

The punishment sentenced by the court below (limited to four years of imprisonment, confiscation) is too unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

1) The lower court determined that, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the Defendant could not be deemed to have lacking the ability or decision-making ability to discern things at the time of committing the instant crime, based on the following facts and circumstances, the Defendant could not be deemed to have been in a state of lacking the ability or decision-making ability to discern things at the time of committing the instant crime.

(1) The Defendant has been engaged in social and workplace life, including monitoring of welfare facilities for persons with disabilities under the contract with Qgu Office.

② Bribery is a cerebral disease that occurs intermittently, and barring any special circumstance, it appears that it itself does not seem to have known that there was a mental disorder that may interfere with the division of dust or decision-making. Furthermore, in light of the progress of the instant crime as indicated in the record, the instant crime cannot be deemed to have been affected by cerebralism in light of the following: (a) in the event of occurrence of cerebral wave, the patient would lose awareness or have difficulties in controlling his body.

③ The Defendant sent G message to the head of Qu in the instant case, and the said message has a logical and form to a certain extent. In addition, the Defendant, from home to J elementary school, was found to have been issued a certificate of graduation to the school security officer to enter the school, and was found to have been in the school administration office in order to enter the school. In light of the above circumstances, the Defendant appears to have been in maintaining the male forces, thinking ability, and judgment ability at the time of the instant case, and did not appear to have been affected by the Cheongh or the rupture.

④ According to the mental appraisal conducted by the lower court, there was no special qualitative damage to the Defendant as a result of the two radiation testing by the Defendant and the brain scopic MRI’s self-scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic sc

2) Examining the aforementioned circumstances by comparing them with records, the lower court’s determination that it is difficult to deem the Defendant at the time of the instant crime was in a state of mental disorder is justifiable. This part of the Defendant’s assertion is unacceptable.

B. Determination on the assertion of unfair sentencing

Based on the statutory penalty, the sentencing is a discretionary judgment that takes place within a reasonable and appropriate scope by comprehensively taking into account the factors that serve as the conditions for sentencing prescribed in Article 51 of the Criminal Act, and our Criminal Procedure Act, which takes the trial-oriented principle and the principle of directness, has the inherent area of the first instance trial with respect to the determination of sentencing. In addition, in light of such circumstances and the nature of the appellate trial ex post facto and in addition, it is reasonable to respect the first instance judgment in cases where there is no change in the conditions for sentencing compared with the first instance judgment, and the sentencing of the first instance court does not deviate from the reasonable scope of the discretion. Even though the sentence of the first instance falls within the reasonable scope of the discretion, it is desirable to refrain from imposing a sentence that does not differ from the first instance judgment by destroying the first instance judgment on the grounds that it is somewhat different from the appellate court’s opinion (see Supreme Court en banc Decision 20

The court below sentenced the above sentence to the defendant on the grounds stated in its reasoning, and the circumstances alleged by the defendant in the appellate court have already been determined by the court below to fully consider the defendant's punishment, and in light of the defendant's age, character and conduct, intelligence and environment, family relation, motive, means and consequence of the crime, circumstances after the crime, etc., the judgment of the court below does not seem to have exceeded the reasonable scope of discretion, and it is reasonable to respect the sentencing of the court below on the grounds that there are no materials to see that there are changes in circumstances in the sentencing conditions in the appellate court. This part of the defendant

3. Conclusion

The defendant's appeal is dismissed as it is without merit.