2015No421 Violation of the Punishment of Violences, etc. Act (a group or deadly weapon)

(Recognized Crime: Special Intimidation, Punishment of Violence, etc.)

Violation of the Act (the damage, etc. to an organization, deadly weapon, etc.)

name: Special property damage, special cases concerning the punishment, etc. of sexual crimes

Violation of the Act (obscenity using communications media)

Maximum00 (60*********), heavy equipment business

Not more than 100 square meters for residential Boba-si

6. Omission of the application for registration in the case of Bocheon-si

Both parties

The prosecution (prosecution), the fixed number of prosecutions (public trial)

Attorney Kim Young-chul

Daejeon District Court Decision 2015Gohap15 Decided July 16, 2015

January 8, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to take a lecture for sexual assault treatment for 40 hours.

The charge of attempted murder among the facts charged in the instant case is acquitted.

1. Summary of grounds for appeal;

A. Defendant

1) Legal principles

The Defendant, who had been in a long-term relationship, requested the victim to distinguish between himself and his own, cut off the balk balk balke from the balk balk, which the victim purchased with the Defendant’s money, and did not intend to kill the victim by such act. Nevertheless, the lower court found the Defendant guilty of attempted murder on the grounds as stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine as to murder.

2) Unreasonable sentencing

The punishment of the court below (three years of suspended execution for two years of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Ex officio determination

Before the judgment on the grounds for appeal by both parties, the prosecutor examined "Violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.)" as "special intimidation", "Violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.)" as "Special Destruction and Damage", "Article 3 (1), Article 2 (1) 1 of the Punishment of Violences, etc. Act, Article 283 (1), and Article 366 of the Criminal Act" as "Articles 284, 283 (1), 369 (1), and 366 of the Criminal Act", and "Violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.)" among the minor items of the facts charged as stated in the judgment of the court below as "Special Intimidation", and "Violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.)" as "Violation of the Punishment of Violences, etc. Act (amended by Act No. 1948, Feb. 7, 20198)".

However, despite the above reasons for ex officio destruction, the defendant's assertion of misapprehension of legal principles is still subject to the judgment of the court under this Act, so it should be seen below.

3. Judgment on the Defendant’s assertion of misapprehension of legal principles

A. Summary of this part of the facts charged (the charge of attempted murder)

The defendant knew that the defendant would operate the cargo vehicle when he purchases and sells softens, and tried to kill the victim by cutting the balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's balk's b.

Accordingly, at around 02:00 on January 27, 2015, the Defendant: (a) accessed the victim’s possession before the house of the victim who was parked on the front road of Boh-si, Boh-si, 81***** the cargo vehicle of Hoh-si (hereinafter referred to as “instant cargo vehicle”); (b) cut off the Brack in a soft-car that was prepared in advance, and (c) on the same day, the victim got off the Brack in order to clean the extraction collected as in Pyeongtaek at around 13:00 on the same day, while driving the Bracked cargo vehicle, which was driven by the Brk for public relations and tide preparation in the lusium at the night of Boh-si, and caused the towing to be towed by using the Brack, the victim did not have attempted to do so on the wind to repair the Brack.

B. The judgment of the court below

In full view of the circumstances acknowledged by the evidence adopted and investigated, the lower court determined that the victim was guilty of attempted murder, on the ground that it is reasonable to deem that the victim was aware or predicted of the possibility or risk of causing death to the victim due to dolusor’s own act at the time of the instant crime.

C. Judgment of the court below

1) Relevant legal principles

As a subjective element of constituent elements of a crime, dolusent intention refers to the case where the possibility of occurrence of the crime is uncertain and it is acceptable. In order to acknowledge dolusent intention, not only has the awareness of the possibility of occurrence of the crime, but also has the intention to deliberate to allow the risk of occurrence of the crime. Whether an offender permits the possibility of occurrence of the crime should be determined based on the specific circumstances, such as the form of the act and the situation of the act outside and outside, without depending on the statement of the offender, in consideration of how the possibility of occurrence of the crime can be assessed, the psychological state should be confirmed from the offender. Even in such a case, the burden of proving the existence of dolusent intention, which is the subjective element of the crime charged, is the prosecutor. Meanwhile, the conviction of the defendant should be based on evidence with sufficient probative value to prove that the facts charged are true beyond a reasonable doubt. Thus, even if there is no doubt as to the existence of such indirect fact, it should be determined based on an indirect fact or circumstantial relevance between the defendant and the defendant (see, 2004.7.4).

2) Determination

A) The following circumstances acknowledged by the evidence examined by the court below, i.e., ① when the driver of a vehicle operates the vehicle while bracing off the brac, if the driver took the brac pedal pedal, the bal pedal pedal pedal pedal far far, and when the brac bal dyke loses its engine power depending on the vehicle, there is a high possibility of traffic accident if the bal dyke was cut, ② the defendant was able to stop the crime described in paragraphs 1 through 3 of the decision of the court below, and around January 20, 2015, the defendant did not know that he died of the bal bal bal bal dal bal bal bal bal bal bal bal bal bal bal bal bal bal bal bal bal bal bal., ③ the defendant was arrested to the police officer of this case.

B) However, in light of the following circumstances acknowledged by the evidence adopted by the court below, it is insufficient to view that the evidence submitted by the prosecutor alone was sufficiently proven to the extent that there is no reasonable doubt as to the Defendant’s perception of the possibility of the Defendant’s death of the instant cargo vehicle or the intent to deliberate on the risk of such death, and there is no other evidence to determine the person.

① At night from the police to the court of the trial, the Defendant made a statement to the same purport on the day of the instant case (on January 27, 2015, 2015), and made a statement to the same effect as before, and made no intention to kill the victim, and denied the criminal intent of murder.

○ Even after the victim, who had been in an internal-related relationship for about 14 years, went back to the home of the victim, even after the victim was in a Hague. However, the Defendant discovered the instant cargo that would have been thought to have been purchased with the victim’s money corresponding to the victim when he went to the home of the victim of the new wall ( January 27, 2015), and the Defendant had been able to think of the instant cargo that had been able to cause the repair cost on the part of the victim, and had been able to bring about the repair cost on the part of the Defendant, using the knick knife that was in the Defendant’s vehicle in order to cause the repair cost on the part of the victim.

○ 브레이크 호스 절단으로 교통사고가 발생할 수 있을 것으로 예상은 했으나 작은 접촉사고로 피해자에게 경제적 손해가 나길 원했을 뿐 피해자가 큰 사고 를 당하거나 사망할 수 있을 것이라고 전혀 생각하지 않았다(교통사고가 나서 피고인 의 돈이 들어간 화물차량이 부숴지기를 바라는 마음에 브레이크 호스를 잘랐다.).

○○ The victim thought that the victim would promptly repair the vehicle because the victim’s life and quality is not the normal driving day, but the victim’s industrial intent. If the victim was intended to die due to a traffic accident, he/she would have died of the victim by his/her own loss.

○ Following the arrest of the police officer, the Defendant stated that “after the arrest of the police officer, the Defendant killed the victim and attempted to kill the victim following the death of the victim because the victim was unsatisfyed.” However, there was an enemy who thought that the Defendant was unsatisfying the person who believed to be a whole life.”

○ With the change of the freight vehicle in this case’s plastic system, it can be seen that the instant Brer and Brer bal bal bal bal bal bal bal balc balc balc balc balc balc balc balc balc bal. In addition, the Defendant was anticipated to cause the victim to drive at a time after the lapse of several hours as at 1:0 p.m. from the new wall 1:0 to 2:0, and during that period, the bal ck was leaked into the bottom and smelled into the bottom and bal bal bal bal bal balc sc sc sc sc sc sc sc sc sc sc fal.

② The place where the instant truck was parked on the day of the instant case is not a slope, but a general parking space (Evidence 3-1, 2-1, 3-2 submitted by the defense counsel). Thus, it is not deemed that there was a situation in which the instant truck immediately operates Brke in order to prevent the sudden operation and the front and rear operation.

③ Around 13:30 p.m. on the day of the instant case, the victim had been driving a vehicle prior to that time and tried to start as a public relations embankment for the location of the instant cargo vehicle. However, unlike the vehicle scambling at the time of the vehicle, the victim was directly aware that the scam is abnormal, and immediately suspended operation and requested repair of the vehicle to the industrial company by using the scamcar with the seat of the land. After the instant case, the police officer confirmed the place where the instant cargo vehicle was parked, and confirmed that the scam was flowing into the road, which was leaked at the time when the scam was cut. Accordingly, after cutting the scam, the victim was leaked in a considerable amount of scam to the immediately preceding operation of the vehicle.

④ At the time when the first witness statement was made by the police at the time of the first witness statement (see January 28, 2015), the victim made a statement to the same effect as the second witness statement (see February 2, 2015), but at the time of the second witness statement (see, e.g., Supreme Court Decision 2000Du500, Feb. 2, 2015), the victim continued to drive a vehicle to the destination (public relations preparation) using a brack, although the brack was slick at the time when the vehicle was driven at a level of about 500 meters by driving the vehicle. If normally, the vehicle was operated to the place connected to the balk from the balk to the decline, the day was set up on the side of the embankment. The distance on the day was approximately approximately 20 km. However, the victim was present at the court of the lower court as a witness, and the victim took the balk to the 3 to 4 qui of the moving.

바로 차량 운행을 중단하고 지인의 도움으로 공업사에 차량을 견인하였다. 바보가 아 닌 이상 브레이크가 안든다는 것을 모를 수가 없다. 수리비는 브레이크선만 교체했기 때문에 5만 원 정도 들었다. 경찰 제2회 조사 때는 경찰관이 저희 집 앞에 와서 사진 을 찍는 것을 피고인이 봤는데도 전화 한 통 없어 괘씸하고 화가 나서 처음 진술과 다 르게 진술하였다."라는 취지로 증언하여 경찰에서의 제2회 진술을 완전히 번복하였다. 당초 이 부분 살인미수의 점에 대한 공소사실은 피해자의 경찰 제2회 진술에 터잡아 피해자가 이 사건 화물차량을 내리막길이 있는 홍보방조제까지 장거리 운행하였던 것 으로 되어 있었으나 , 피해자의 원심법정 증언 이후 홍보방조제까지의 운행 부분은 공 소사실에서 삭제되는 것으로 공소사실이 변경되었다. 만약 "피해자가 사이드 브레이크 를 이용하여 약 20km 정도 이 사건 화물차량을 운행하였다. "는 취지의 피해자의 경찰 제2회 진술이 없었다면, 피고인이 교통사고를 발생시키는 방법으로 피해자를 살해하려 고 한 것으로의 공소사실 의율이 가능하였을지 상당한 의문이 든다.

(5) In the case of cargo vehicles using a scopic variable, even if they are placed in a middle line without cler or brackings when they maintain the vehicle or perform the test, the scopher itself may walk at the time when they are placed in a middle line. However, it falls under the ordinary driving method when they simultaneously take the cler and brac pedal pedal and take the brac pedal pedal pedal. In addition, even if the brack is not inscribed, the balk’s restoration ability is considerably reduced even if the brac is taken once in a state of brac scop well, and when the brac is leaked, when the balk is leaked, the balc warning, etc. on the balk is put on the balk when they walk (in the case of the instant cargo vehicle, no evidence exists to prove that the balk was broken

6. According to the data submitted by a defense counsel (Evidence 2, No. 3-30), the current state of the road from a place where the instant cargo vehicle was parked (to be cleaned so as to be cleaned by the victim) to the tide embankment where the victim was parked is about 6.8 km, which is a general road section of which the flick and Salke form is connected with the general road. If the balke ray is cut to be leaked under the structural condition of the vehicle where the balke is inevitable to leak, it is difficult in light of the empirical rule to readily conclude that the victim attempted to drive the flick distance from the general public’s perspective with an average common sense. Moreover, even if the 40-year truck is parked, it is difficult to see that the Defendant’s vehicle was parked with a heavy equipment vehicle on the same day, the situation at which the instant cargo vehicle was parked, and the victim’s average operation method of the stalke on the day of the instant vehicle’s display and stalke on the same day.

7) Even if the Defendant predicted the occurrence of a traffic accident on the day of the instant case and cut off the brac ice, if it is difficult to individually and specifically confirm the high probability that the victim may directly die due to the occurrence of a large traffic accident, if it is difficult to individually and specifically confirm the situation that the victim might have a high probability of having a direct death, the penal provisions shall be strictly interpreted, and the burden of proof is to be borne by the prosecutor under the fundamental principle of criminal justice that the Defendant predicted the occurrence of a traffic accident, it is difficult to readily conclude the commencement of the commission of the murder itself due to the motive and intent to murder the victim immediately.

(8) Before entering the instant case, the Defendant did not have any criminal record to recognize specifically violent crimes except for those sentenced to a fine of 5 times in total for relatively minor crimes, such as violation of the Road Traffic Act and the Automobile Management Act. Although the Defendant: (a) stated in the instant event that “the Defendant: (b) caused the Defendant to death of, and attempted to kill, the injured; (c) caused the death of, the injured; and (d) caused the death of, the injured; and (d) temporarily, there was a deep time when the degree of confidence of, the injured; (c) as much as the Defendant would want to kill and die the injured; (d) it is difficult to conclude that the Defendant was in an internal relationship with which the Defendant did not economically and economically affect the injured for a total period of time by notifying the Defendant of the decision to the Defendant; and (d) it did not seem that the Defendant did not have any other man or to have any significant response without having to take part in the defect that the Defendant intended to cause a traffic accident to cause the death of the injured; and (d) it is difficult to conclude that the Defendant had any such risk of the death.

C) The lower court erred by misapprehending the legal doctrine on the intent of murdering, thereby adversely affecting the conclusion of the judgment. The Defendant and the defense counsel pointing this out has merit.

4. Conclusion

Therefore, the judgment of the court below is reversed in its entirety pursuant to Article 364 (2) and (6) of the Criminal Procedure Act without examining the grounds for ex officio reversal and the defendant's assertion on the misapprehension of the legal principle is well-grounded. It is so decided as follows.

again, the reasons for the judgment

Criminal facts

The criminal facts acknowledged by this court are identical to each corresponding column of the judgment of the court below, except for the violation of the Act on Punishment of Violence, etc. (a collective action, a deadly weapon, etc.) in the criminal facts of the court below as "special intimidation"; "Violation of the Punishment of Violences, etc. Act (a collective action, a deadly weapon, etc.)" (a violation of the Punishment of Violences, etc. Act (a violation of the Act on the Destruction and Damage, etc. of Specific Property)"; and all deletion of the attempted murder of paragraph (4) of the criminal facts. Thus

Summary of Evidence

1. The original judgment and the statement in court room of the defendant;

1. The first written statement made to ○○○ in the police station;

1. Each investigation report (the sequence 10,31 of the evidence list);

1. A report on the analysis of digital evidence;

1. Receipts:

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 284 and 283(1) of the Criminal Act (special intimidation, choice of imprisonment), Articles 369(1) and 366 of the Criminal Act (Special Destruction and Damage of Property, Selection of Imprisonment), Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the use of telecommunications media and obscene content, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment for Crimes of Serious Special Intimidation) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Order to attend lectures;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Exemption from an order for disclosure and notification;

In full view of all the circumstances indicated in the record, including the following: (a) Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; (b) the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Defendant has no record of having been punished due to a sexual crime; (c) the background of the crime in this case; and (d) the circumstances after the crime in this case; and (c) the Defendant seems to have a high risk of recommitting a sexual crime; and (d) the Defendant appears to have an effect to prevent recidivism to a certain extent by taking lectures in the treatment of sexual violence against the Defendant and the registration of personal information; and (e) comparison of the profits expected by the Defendant’s order to disclose or notify information on registration and the effect of prevention

Registration of Personal Information

Where a conviction becomes final and conclusive against a person subject to registration of personal information under the main sentence of Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant is obligated to submit his/her personal information to the competent authority pursuant to Article 43 of the same Act.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one month to ten years;

2. Application of the sentencing criteria;

(a) Basic crimes: Special intimidation;

[Determination of Punishment] violent crimes, intimidation crimes, Type 4 (Habitual, Cumulative, Special Intimidation)

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Recommendation and Scope of Recommendations] The area of mitigation, 4 months to 1 year of imprisonment

(b) Concurrent crimes: Crimes of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity by communications media);

(c) Criteria for handling multiple crimes: not less than four months of imprisonment (the crime of special intimidation for which the sentencing criteria are set shall be subject to recommendation of a basic crime, inasmuch as the crime of special intimidation for which the sentencing criteria are set is in a concurrent relationship between the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media) and the former part of Article 37 of the Criminal Act).

3. Determination of sentence: One year of imprisonment and two years of suspended sentence; and

The crime of this case is a case where the defendant had a long-term relationship with another person who demanded the victim to be hedging, threatened the victim with a stringer disease, and the defendant's sexual organ photographing the victim, in addition to destroying the victim's vehicle due to the wall, the defendant's sexual organ photographing the victim's sexual character, and transmitted it seven times, and the crime is not less complicated, and it is a case where the defendant should be held liable for the corresponding liability.

However, the damage was caused even if the defendant had long-term economic support to the victim while maintaining the relationship between the victim and the victim.

In the event that a person unilaterally demands the Defendant to hedge, there are some parts to be considered in the course of committing each of the crimes in this case, such as: (a) the victim does not want the punishment of the Defendant by agreement with the Defendant; (b) the Defendant does not have any particular criminal power other than the amount of a fine of five times in total; and (c) the Defendant appears to have an opportunity to have a strong reflective and self-esteem while living a considerable period of time in the instant case, etc., may be considered when determining the punishment of the Defendant.

The punishment shall be determined as ordered by taking into account the following circumstances: Defendant’s age, character and conduct, environment, health conditions, motive and background of the crime, means and manner of the crime, circumstances after the crime was committed, whether damage was recovered, etc.

Part not guilty (the point of attempted murder)

The summary of this part of the facts charged is the same as that of the 3-A, which constitutes a case where there is no proof of a crime as seen in the 3-C., and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

(Presiding Judge)

New Eastern Constitution

Isi-Name

1) Since the sentencing criteria for the crime of causing special property damage were enforced from July 1, 2015, the crime of causing special property damage in this case, which was instituted before the prosecution was brought against the crime of causing special property damage.

The sentencing criteria shall not apply.