Defendant

Freeboard (prosecution), Kim Sung-sung (Public trial)

Attorney Park Jong-ho (National Assembly)

A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 40 hours.

The charge of violating the Control of Firearms, Swords, Explosives, etc. Act among the facts charged in this case is acquitted.

Of the facts charged of this case, the prosecution against assault is dismissed.

1. Violation of the Punishment of Violences, etc. Act (a collective action, deadly weapon, etc.);

피고인은 2014. 4. 28. 19:15경 화성시 (주소 생략)에 있는 ○○식당에서 다른 테이블에 앉아 있던 피해자 공소외 1(대판:공소외인)(56세)이 “저 새끼가 개 죽은 것 때문에 신고를 했었어.” 라고 말한 것에 격분하여 피고인은 피해자를 “총으로 쏴 죽인다.”라고 말하며 위 식당 밖으로 나가 자신의 차량 안에 있던 흉기인 공기총(총명 생략)을 꺼내어 들었고, 피고인을 따라 나간 피해자의 일행인 공소외 2(52세)가 이를 말리면서 총구가 하늘로 향하자 1회 격발하는 방법으로 피해자를 협박하였다.

1. Defendant's legal statement;

1. The protocol of statement made by the police against Nonindicted Party 1 (Person outside the Public Prosecution) (including the part of the statement made by Nonindicted Party 2)

1. Seizure records;

1. Article applicable to criminal facts;

Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., Supreme Court Decision 2009Da15488, Apr. 2, 2009)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Taking into account the above circumstances and the fact that the defendant has no record of being punished other than once a suspended sentence of a fine)

1. Social service order;

Article 62-2 of the Criminal Act

1. Facts charged;

A person who has obtained permission to possess a gun shall not use the gun except for the purpose of use permitted or there is any justifiable reason.

Nevertheless, the defendant used the air gun, which was under custody after obtaining permission for the use of harmful birds (permission number: 90135) at the time and place of criminal facts stated in the judgment, for the purpose of threatening the victim as stated in the judgment.

2. Determination

The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of the penal law shall be strict, and an excessive interpretation of the meaning of the express penal law to the disadvantage of the defendant is in violation of the principle of no punishment without the law and is not allowed (see Supreme Court Decision 2012Do4230, Nov. 28, 2013).

Article 17(2) of the Control of Firearms, Swords, Explosives, etc. Act provides that a person who has obtained permission to possess a gun, etc. shall not use the gun, etc. except for the permitted use or other justifiable reasons. Article 73 Subparag. 1 of the same Act provides that a person who violates Article 17(2) shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding five million won.

In full view of the fact that the prior meaning of “use” is “for a certain purpose or function,” and that it is reasonable to interpret that a gun is used in compliance with its function by limiting it to mean that the gun is used in a way of shoting. In other cases, there is a concern that the outer smoke of the concept of “use” might excessively expand if it is included in the use. ③ There is a provision separate from the “use of guns, etc.” for the “storage, carrying, transporting, transporting, etc.” of guns, etc., and there is an administrative fine provision for a violation of Article 17(1) and (3) of the Act on the “storage, Carrying, Transport, etc.” of guns, etc., the phrase “use” under Article 17(2) of the above Act should be construed as limited to cases where guns, etc. are used in compliance with their function, that is, where guns, etc. are exchanged, and it shall not be deemed that the act of spreading guns is not included in the “use of guns.”

In this case, there is no evidence to prove that the defendant was charged with ball or blank cartridges within the air gun that caused the defendant to the public.

However, even if an empty air gun was an empty air gun, it seems that the victim was able to feel a danger to life or body at the time of the incident. As such, the Defendant’s act of causing an frequent air gun to the public can be established as a crime of violating the Punishment of Violences, etc. Act (collective, deadly weapons, etc.). Accordingly, the crime of violating Article 17(1) of the Act on the Control of Firearms, Swords, Explosives, Etc., concerning “storage, Carrying, and Transport” may be established. However, it is difficult to see that such act constitutes a crime of violating Article 17(2) of the same Act.

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

1. Facts charged;

On April 28, 2014, at around 19:15, the Defendant assaulted the victim Nonindicted Party 1 (the Nonindicted Party 1 (the Nonindicted Party 56 years of age) (the Defendant reported because he was dead, because he was dead) that he was seated on another ○○ restaurant located in the ○○○ City ( Address omitted) and called “the Defendant reported because he was dead.”

2. Determination

This part of the facts charged is a crime falling under Article 260 (1) of the Criminal Act and cannot be prosecuted against the victim's explicit intent under Article 260 (3) of the Criminal Act. According to the written agreement bound in the records, it can be acknowledged that the victim expressed his/her intention not to prosecute the defendant after the institution of the prosecution in this case. Thus, the prosecution is dismissed in accordance with Article 327 (6) of the Criminal Procedure Act.

Judges Park Byung-hee