2006No508 homicide

○ Kim

Defendant and Kim Jong-chul

westO

Attorney SOO

Daegu District Court Decision 2006Gohap53 decided Oct. 20, 2006

March 8, 2007

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Summary of grounds for appeal by the defendant

(1) misunderstanding of facts

In light of the fact that the defendant knife on the left chest of the victim's chest, and the defendant knife knife knife knife knife the victim's chest, and there is no motive or reason to kill the victim, the court below erred in the misapprehension of the judgment by misunderstanding that the defendant knife knife knife knife knife knife knife knife knife while the defendant knife knife with the victim while knife knife knife is possible.

(2) Unreasonable sentencing

Even if the charge of this case is found guilty, if we look at the circumstances of the crime of this case, the relationship between the defendant and the victim, and the defendant's mistake in depth, the punishment of the court below against the defendant is too unreasonable.

B. Summary of prosecutor's grounds for appeal

In light of the gravity and nature of the instant crime, degree of damage, and the attitude of the Defendant after the instant crime, etc., the lower court’s sentence against the Defendant is too uneasible.

2. Summary of the facts charged in this case

The defendant, who was living in Japan around May 31, 2001 and was living together with the victim's door ○○ (33 years of age) from around December 2004 or from around March 1, 2005, entered Korea on February 1, 2006, and reported marriage on April 25, 2006 with the victim, who was regularly living in Korea, and on May 2006, purchased the apartment house 46 million won borrowed on the condition of repayment 20 years on May 31, 2006 and 16 million won with the defendant, and began to live together with the victim;

206. 23 On May 15, 206, the victim had no 30,000 won of the victim's knife with the above apartment that had been frightened to get a fright, and the victim had no interest in the economic life of the victim, such as having frightend with the victim's knife with the victim's knife's knife with the victim's knife's knife's knife with the victim's knife's knife's knife with the victim's knife's knife's knife's knife with the victim's knife's knife's knife's knife with the victim's knife's knife's knife.

3. The judgment of the court below

The court below held that the criminal intent in the crime of murder does not necessarily require the purpose of murder or the planned intention of murder, and it is sufficient to recognize or anticipate the possibility or risk of death of another person due to his own act, and its recognition or predictability is not definite, but so-called dolusent intent as well. In the event the defendant contests that there was no intention of murder at the time of the crime, whether or not the defendant had the intention of murder should be determined by taking into account the circumstances such as the circumstance leading up to the crime and motive leading up to the crime, and the part and degree of attack, etc. before and after the crime. In other words, considering the following circumstances acknowledged by evidence, the defendant could have been found to have been out of extreme progress by assaulting the victim immediately before and after the crime of this case, and the defendant could have been found guilty of the victim's chest by taking advantage of the circumstances such as the situation where the defendant 1 was aware of the victim's chest and the victim's remaining chest by taking advantage of the victim's motive and the sound of the victim.

4. Judgment of the court below

A. As to whether there is direct evidence corresponding to the facts charged, there is only a statement by the defendant and the victim as evidence of this case that the defendant and the victim died in the knife while the victim died while the knife did not kill the victim in the knife, there is a statement by the witness on the circumstances before and after the victim died in the knife, and a document or a photographic image stating the results of autopsy of the victim's body before and after the victim died, and there is no direct evidence corresponding to the facts charged of this case that the defendant intentionally killed the victim in the knife.

As such, in a case where there is no direct evidence, such as a statement by a scambling person, in which only the Defendant and the victim had committed an accident, the accused can be found guilty only when the facts charged can be inferred to the extent that there is no reasonable doubt by applying logical rules and empirical rules to the indirect facts recognized by legitimate evidence. As such, in the instant case, it should be presumed that the possibility of suicide by the victim or the possibility of the victim's death due to contingent accidents is excluded from the scope of the possibility of causing injury like the facts charged, and the possibility of the victim's death is ultimately caused by the act with the Defendant's knife, it cannot be seen that the victim's death was caused by the act with the Defendant's knife (Supreme Court Decision 2001Do1010 Decided May 8, 2001).

B. Therefore, this case’s objective facts acknowledged by evidence should be examined first, and then whether the possibility of suicide of the victim or the possibility of the victim’s death may be ruled out without reasonable doubt due to any contingent accident should be examined.

(1) Facts found based on evidence

In full view of the evidence duly admitted and examined by the court below, the following facts are recognized:

(A) On May 15, 2006, at around 23:45, the Defendant and the victim, who were married, died of a real blood relative due to damage caused by the knife and snife in the knife and the knife from the knife to the knife.

( 나 ) 사망한 피해자의 몸 왼쪽 가슴의 젖꼭지 상방 약 6㎝ 위에 길이가 약 2.7 ㎝(실제 자창의 길이는 4cm이고, 형태는 자절창의 형태로 약간 'V'모양), 깊이가 약 11 ㎝인 자창이 있는데(수사보고(사체부검시 상황, 수사기록 제38쪽), 추송서(감정결과회보 서)에 첨부된 부검감정서, 수사기록 제543쪽}, 칼이 들어간 입구는 좌측 가슴 2번째와 3번째 갈비뼈 사이이고, 자창관은 상후방으로 좌측 폐의 상엽으로 향해져 있으며, 칼의 방향은 갈비뼈에 평행하여 15°로 내측을 향하고 있는데, 칼등 부분이 신체 외측으로 칼날 부분이 신체 내측으로 향하여져 있다(서울대학교 의대 법의학교실 교수 이정빈 작성 의견서 첨부보고에 첨부된 의견회보서(수사기록 제582쪽), 부검의 질의답변서(공 판기록 제34쪽)}.

(C) There is no other damage on the part of the victim’s body, and there is no other fact, such as the main trace or the defense trace.

(2) First, the victim was knife about the possibility of suicide of the victim, and the defendant stated that knife him knife him at the first statement at the police box immediately after the occurrence of the instant case (the police statement against the defendant, the knife knife of the investigation record), but its circumstances are somewhat different from the time from the actual situation in which the defendant and the victim were loaded on the same day to the court of the trial, but the victim became knife in the knife due to an accident while the defendant and the victim got knife. In light of the location and form of the knife and the body of the victim as seen earlier, it does not seem that the victim self knife himself in knife.

(3) Next, in order to determine whether the contents of the Defendant’s statement on the background of the instant occurrence are probable and reliable in order to determine whether the Defendant and the victim caused knife with each other and caused contingent accidents and the victim could have been excluded from the road with no reasonable doubt.

(A) First, since the prosecution, the Defendant: (a) discovered that the situation at the time of the occurrence of the instant case was only the moment of memory; and (b) did not overall memory; (c) sought to harm the victim’s knife by using the knife; (d) claimed that the Defendant and the victim applied knife with knife with knife and knife with knife with knife with knife; and (e) took knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with the knife.

( 나 ) 다음으로, 피고인이 진술한 바와 같은 상황에서 우발적인 사고로 피해자 의 왼쪽 가슴 부위에 칼이 찔리게 될 경우 앞서 본 바와 같은 자창이 생길 수 있는지 에 관하여 보건대, 피고인의 검찰에서의 일부 진술과 같이 피해자가 칼에 찔리기 전에 피고인이 왼손에 칼을 들고 오른 손목에 자해를 하려는 자세로 있었다면, 피해자가 피 고인의 손등이 하늘을 향하도록 돌려 잡은 다음 칼끝이 전면을 향하도록 피고인의 손 목을 바깥쪽으로 심하게 꺽은 상태에서 그 칼끝을 피해자의 가슴 부위로 잡아당기는 과정에 칼에 찔린 것이 아닌 이상 앞서 본 바와 같은 자창의 형태가 생기기 어렵기는 하나, 피고인이 과거에 자해를 한 적이 있고 그 당시에 왼손에 칼을 들고 오른손의 손 목에 자해를 했기 때문에 이 사건 당시에도 왼손에 칼을 들고 있었을 것으로 생각한다 거나 칼을 어느 손에 들고 있었는지 기억이 나지 않는다는 등의 검찰과 원심 및 당심 법정에서의 진술에 비추어 보면, 칼을 잡은 자세나 방법 및 시기에 관한 위와 같은 진 술이 피고인의 명확한 기억에 의한 것이라고 보기 어려워 반드시 피고인이 이 사건 발 생 직전에 왼손에 칼을 잡고 자신의 오른 손목에 자해를 하려는 자세를 취하고 있었던 것으로 전제할 수 없고, 결국 위 진술만으로는 피고인과 피해자가 실랑이를 하던 중 우발적인 사고로 피해자가 칼에 찔렸을 가능성을 배제하기 어렵다.

However, according to the statement of opinion in the preparation of doctor Kim Jong-hun, if the knife is inserted knifely during the process of dispute, the direction of knife knife knife should be observed. In addition, the knife knife should be seen as knife knife different from this case even at knife knife knife knife knife can be ruled out (No. 569 of investigation record). However, if the knife knife is inserted knifely in the knife knife, the direction of knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.

(C) On the other hand, as in the facts charged in this case, it is difficult for the defendant to use a knife on his knife and knife the victim, and to knife the victim's left chest with a knife, and to knife the victim's knife with a knife with a knife, there is a higher possibility of accidents or suicide in that the knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knife's knif.

C. Accordingly, with respect to the facts charged in this case where the defendant intentionally killed the victim in knife, there is no sufficient evidence to exclude the possibility that the death of the victim was caused by an accident, not by the defendant's intentional murder, from a reasonable doubt, and so long as such possibility is not ruled out to the extent that there is no reasonable doubt, the fact that the defendant murdered the victim in knife cannot be deemed to have been proven to the extent that there is no reasonable doubt. Thus, the facts charged in the crime of murder in this case should have been pronounced not guilty of the defendant because the facts charged in the crime of murder in this case constitute a case where there is no proof, and the court below found the defendant guilty of the above prosecutor's office, and the judgment of the court below erred by misapprehending the remaining facts, which affected the conclusion of the judgment

5. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without the need to further decide on the grounds for appeal by the person against whom the appeal of unfair sentencing was made and the prosecutor, and the following decision is rendered through pleadings.

The summary of the facts charged of this case is as stated in Paragraph (2). As seen in the above reasons for reversal, it constitutes a case where there is no proof of facts constituting a crime, and thus, it shall be pronounced not guilty pursuant to the latter part of Article 325

It is so decided as per Disposition for the above reasons.

Lee Lecture-won (Presiding Judge)

Kim Il-il

x. Jark Sick Number