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(영문) 부산고등법원 (창원) 2017.11.29 2016노277 (1)
살인미수
Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) The Defendant had no intention to kill the victim at the time of committing the instant crime.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

2) The sentence sentenced by the lower court to the Defendant (two years and six months of imprisonment, and four years of suspended execution) is too unreasonable.

B. The sentence imposed by the prosecutor by the court below against the defendant is too unfortunate and unfair.

2. Determination

A. 1) Determination on the Defendant’s assertion of misunderstanding of facts does not necessarily require the purpose of murder or the intent of planned murder, but there was an intentional intent if the Defendant knew or predicted that there was a possibility or risk of causing another’s death due to his/her act, such as his/her own assault, etc.

may be filed.

In a case where the Defendant asserted that there was no intention of murder at the time of committing the crime, and only the Defendant was only the intentional murder or assault committed, the determination should be made by taking full account of the objective circumstances before and after committing the crime, such as the background leading up to the crime, motive for the crime, existence of a deadly weapon prepared, type and usage of a deadly weapon, the fear and repetition of an attack, the degree of the occurrence of the result of the crime, the possibility of the occurrence of the consequence of the crime, and the existence of a voluntary act as a result of the crime, etc. (see, e.g., Supreme Court Decision 2015Do5355, Oct. 29, 2015). 2) In light of the legal principles as seen earlier by the evidence duly adopted and examined by the lower court, the Defendant was aware at least of the possibility or risk of the death of the victim by his own act at the time of committing the instant crime, in light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court.

Since it is reasonable to view the facts charged of this case as guilty, the court below found the defendant guilty.

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