(영문) 서울고등법원 2016.07.20 2016노516 | 리걸엔진

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Text

Reasons

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울고등법원 2016.07.20 2016노516

살인

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for fifteen years.

Reasons

1. Summary of grounds for appeal;

A. Although Defendant 1 did not have any intention to kill the victim, the lower court erred by misapprehending the fact that the Defendant intentionally murdered the victim with a knife.

2) The lower court erred by misapprehending the legal doctrine or failing to recognize the Defendant’s physical and mental weakness by misapprehending the legal doctrine, even though the Defendant had committed an act in a state where the ability to discern things or make decisions was weak due to drinking caused by acute alcohol addiction.

3) The sentence sentenced by the lower court to the Defendant (25 years of imprisonment) is too unreasonable.

B. The sentence imposed by the prosecutor (unfair sentencing) by the lower court is too unhued and unreasonable.

2. Determination

A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.

According to the evidence duly adopted and examined by the lower court, the Defendant appealed on November 19, 2015 after having been sentenced to ten months of imprisonment and two years of suspended sentence for a special intimidation at the Seoul High Court on the grounds of the special intimidation, and the judgment dismissing the appeal on March 10, 2016, which became final and conclusive on the same day.

Therefore, the crime in the judgment of the court below against the defendant is in the relation of the above special intimidation and the latter part of Article 37 of the Criminal Act, and the punishment shall be imposed at the same time in consideration of the equity in the case where the judgment is to be rendered at the same time. Since the court below seems to have sentenced the punishment without considering this, the judgment of the court below cannot avoid reversal in this regard.

However, there are such reasons for ex officio reversal.

Even if the defendant's assertion of misunderstanding the facts and legal principles is still subject to the judgment of this court, it shall be determined below.

B. As to the assertion that there was no intention to murder, the defendant alleged the above facts at the court below.

참조조문

-형법 제39조 제1항

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