[1] In a case where the negligence, etc. of a victim or a third party competes between violence and death, whether a proximate causal relationship is recognized (affirmative), and how to determine the predictability of the result of death

[2] In a case where the victim inflicted a death by assaulting the other party in a drunken state where drinking alcohol was done, the case affirming the crime of death by assault on the ground that even if the victim was suffering from a heart disease, etc., the causal relationship between the assault and the death of the victim, which is the direct cause of the death, was recognized, and that the result of the death could have been predicted if the victim was aware that the victim was very weak at the time of assault

[3] The case holding that the jury guilty of the larceny charges is pronounced differently from the jury's verdict of innocence

[1] Since the crime of death by assault is an aggravated crime, there should be a proximate causal relation between the act and the result thereof, and there should be predictability for the result of death. First, proximate causal relation is not the only cause or a direct cause for the result of the death of the victim, and even if the result was caused by concurrent crimes between the victim and the third party, it can be recognized even in cases where the result of the crime was committed. For example, it cannot be said that there was no causal relation between the assault and the death on the ground that the victim was in a critical state and the disease was also affected by the victim's assault and the result of the death was also affected by the victim's assault. Next, the existence of predictability should be strictly examined in light of specific circumstances, such as the victim's nature, degree and method of the assault, whether the victim had a special disease or special transfer quality, whether the victim had a victim's private person, and the relationship between the defendant and the victim.

[2] In a case where the victim inflicted a death by assaulting the other party in a drunken state where drinking alcohol was done, the case affirming the crime of death by assault on the ground that the victim could have predicted the result of death, even if there was a physical disease such as heart disease, if the causal relationship between the assault and the death of the victim, which is the direct cause of death, was recognized, and the victim was aware that the victim was very weak at the time of assault

[3] The case holding that the jury guilty of the larceny charges is pronounced differently from the jury's verdict of innocence

[1] Articles 15(2), 17, and 262 of the Criminal Act / [2] Articles 15(2), 17, and 262 of the Criminal Act / [3] Articles 48(4) and 49(2) of the Act on Citizen Participation in Criminal Trials

[1] Supreme Court Decision 82Do697 delivered on January 18, 1983 (Gong1983, 461) Supreme Court Decision 85Do243 delivered on September 9, 1986 (Gong1986, 1420) Supreme Court Decision 89Do556 delivered on October 13, 1989 (Gong1989, 1717)

Defendant

A private freeboard et al.

Attorney Jeon Jong-ho

7 persons

A defendant shall be punished by imprisonment for four years.

48 days of detention before this judgment is sentenced shall be included in the above sentence.

1. Do;

At around 17:00 on October 29, 2008, the Defendant: (a) taken advantage of the crepan of cash 50,000 won in the crepan of the victim Nonindicted Party 1 (the age of 56) who was aware of the Defendant’s drinking alcohol in a permanent city (hereinafter omitted); and (b) took advantage of the crepan of the crepan of the victim’s 203 room where the Defendant was living together with the victim while drinking alcohol; and (c) taken advantage of the crepan of the crepan of the victim’s crepan of drinking water.

2. Death of violence;

At around 00:00 on the 30th day of the same month, the Defendant, while drinking alcohol together with the victim at the above 00:03 room, committed assault on the part of the victim’s left side side, on the ground that the victim was under drinking, by drinking alcohol, by speaking several times to the effect that the victim would move and stop his/her vehicle to another place.

The defendant caused the victim's death from around 11:00 to around 13:55 of the same day, resulting in the victim's death from fussing.

1. Partial statement of the defendant;

1. Each legal statement of the witness Nonindicted 2, 3, 4, and 5

1. Examination protocol of the accused by prosecution;

1. A protocol of interrogation of some police officers against the accused (excluding the part concerning theft-related statements);

1. Each police protocol on Nonindicted 2, 4, 5, 6, 7, and 8

1. Each investigation report (the results of a police officer's call in charge, such as a change of his/her personal history, the relation to a change of his/her personal history, the details of card use, CCTV image data of financial institutions, CCTV data, hospital treatment log, matters related to the period of crime, search and investigation of surrounding restaurants, drinking photographs, and the result of police

1. Two-story medical records and two-story medical records, translation of report on the occurrence of a change of a disaster, changeer and field photo, response to cooperation in investigation, emergency medical services, verification report, autopsy and expert report, and ○○ inn;

1. Relevant Article of the facts of crime and the selection of punishment;

○ Articles 262, 260(1), and 259(1) of the Criminal Act (Death or Injury caused by Violence)

○ Article 329 of the Criminal Code (the point of larceny and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes within the extent of Aggregate of Long-term Punishment of Crimes of Violence and Death with Severe Punishment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Summary of the assertion

Defendant’s defense counsel: (a) the victim was used on the road before sobreath and was in the emergency room in the Saeng Saeng Hospital due to the police’s rescue; (b) the victim was in the toilet while drinking in the inn part of the defendant and the inn part; (c) the causal link between the defendant’s assault and the death of the victim is not clear; and (d) the defendant was placed on twice the left part of the victim’s left side by drinking on the right side; (c) the defendant was not entirely anticipated that the victim was dead; and (c) the defendant was in a state of mental disability under the influence of alcohol at the time of committing the instant crime.

2. Determination:

A. Determination on the assertion that there is no causation and predictability

(1) Since the crime of death by assault is an aggravated crime, there should be a proximate causal relation between the act and the result thereof, and there should be predictability of the result of death.

First, proximate causal relation is not the only cause or direct cause for the defendant's act to cause the death of the victim, and it can be recognized even if the result was caused by competition with the victim or a third party's negligence. Thus, it cannot be said that there was no causal relation between the assault and the death on the ground that the victim was in a state of normal illness and that the disease was also affected by the defendant's assault and the result was also affected by the death (see, e.g., Supreme Court Decisions 82Do697, Jan. 18, 1983; 89Do556, Oct. 13, 198).

Next, the possibility of predictability should be strictly examined by taking into account the specific circumstances, such as the part, degree and method of the defendant's assault, whether the victim has a special disease or special transfer, whether the victim had a special disease or special transfer, the relationship between the defendant and the victim. If the defendant was aware that the victim was a person who was in the sick condition at that time and was only under drinking, even though the defendant was unaware of the specific name, it should be deemed that there was a possibility that the defendant could have predicted the result (the victim who suffered a heart disease dies at the shock heart cost of September 9, 1986; Supreme Court Decisions 85Do2433, Oct. 13, 1989; 89Do5566, Oct. 13, 198; 2005Do1866, Mar. 25, 2005).

(2) 살피건대, 앞서 든 각 증거에 의하여 인정되는 다음과 같은 사정 즉, ① 피해자는 이 사건 발생 이전인 2008. 10. 23. 14:47경 및 2008. 10. 28. 21:13경 두 차례나 만취 상태로 영주시 풍기읍 일대 노상에 쓰러져 있다가, 신고를 받고 출동한 119 구급대에 의해 병원으로 후송된 적이 있었으나 특별한 외상을 입지는 않았고, 병원에서도 외상에 대한 치료를 받은 적은 없으며, 다만 급성 알콜 중독으로 진단받아 구토방지제, 수액 등의 처치를 받았을 뿐인 점(증거기록 58, 109쪽), ② 피고인은 2008. 10. 28. 오후 무렵 풍기역 앞에서 술에 취해 땅바닥에 앉아 술을 마시고 있던 피해자를 처음 만나 같이 술을 마신 후 헤어졌는데, 피고인은 수사기관에서 당시 피해자가 손과 다리를 떨고 술만 마셨으며 얼핏 보아도 알콜중독자 같아 보였다고 진술한 점(증거기록 49~50, 270~271쪽), ③ 피고인은 2008. 10. 29. 11:00경 ~ 12:00경 피해자와 함께 ○○여관 203호실에 투숙하였는데, 그때도 피해자는 여전히 손과 다리를 떨었으며 피고인에게 속이 아프고 밥을 먹지 않은 지가 한두 달 되었다고 말하기도 하였던 점, ④ 그럼에도 피고인은 여관에 투숙한 이후 피해자와 함께 이 사건이 발생하기 전까지 식사도 제대로 하지 않은 채 소주 8병 내지 10병 정도를 나누어 마셨던 점(증거기록 27, 50, 133, 161쪽), ⑤ 성신다방 종업원인 공소외 4가 2008. 10. 29. 14:00경 ~ 15:00경 ○○여관 203호실에 차 배달과 소주 심부름을 왔을 당시 피해자는 방바닥에 누워서 양손으로 배를 움켜잡고 심하게 끙끙 앓고 있었으며, 화장실 양변기에 앉아 있다가 바닥에 앞으로 넘어지기도 하는 등 장기간 술을 마셔 몸이 극도로 쇠약한 상태였던 것으로 보이는 점, ⑥ 부검감정서에 의하면 사망 당시 피해자의 심장에는 심비대, 고도의 관상동맥경화, 심근의 섬유화 등 고도로 진행된 허혈성 심장질환이, 신장에는 만성 신장염이, 췌장에는 만성 췌장염이, 간에는 고도의 지방간이 있었던 것으로 밝혀졌는데, 피해자는 각종 질환으로 극도로 병약한 상태였던 점, ⑦ 피해자는 신장 166㎝, 체중 56㎏의 왜소한 체구인데 비해 피고인은 신장 170㎝, 100㎏에 조금 못 미치는 체중으로, 체격에서도 현저한 차이가 나는 점, ⑧ 그런데 피고인은 2008. 10. 30. 00:00경 ○○여관 203호실에서 함께 술을 마시던 중 피해자가 술에 취해 횡설수설한다는 이유로 오른쪽 주먹으로 피해자의 왼쪽 옆구리 부위를 2회 때렸고, 이에 피해자가 뒤로 누우면서 ‘살려달라’고 말하자 폭행을 중단한 후 피해자를 남겨둔 채 곧바로 여관방을 나왔던 점, ⑨ 그 이후 피해자는 ○○여관 203호실에 누워 있다가 같은 날 11:00경부터 13:55경 사이에 흉복부 손상에 의한 다량의 실혈로 사망에 이르게 된 점(증거기록 265, 269쪽), ⑩ 국립과학수사연구소 소속 부검감정의 공소외 3은, ㉠ 피해자에게는 좌측 허리 부위에 광범위한 피하출혈 및 근육 내 출혈과 좌측 11, 12번 후늑골의 골절이 있는데, 이 부위에 강한 외력이 가해진 것으로 보이고, ㉡ 좌측 흉강내에 소량의 혈액이, 후흉벽 근육, 횡격막, 장간막, 후복막강 연조직 등에서 다량의 출혈이 보이는데, 이러한 출혈들은 늑골 골절부 및 주변 연부조직 출혈이 이동하여 발생한 것으로 판단되며, ㉢ 안검결막 및 실질 장기가 빈혈상이고 시반이 미약한 소견을 보이는 등 다량의 실혈 때 동반되는 소견들에 비추어, 피해자의 사인은 흉복부 손상에 의한 다량의 실혈로 판단된다는 소견을 밝힌 점, ⑪ 위 부검감정의는 또한, 피해자의 심장에서 고도로 진행된 허혈성 심장질환, 신장에서 만성 신장염, 췌장에서 만성 췌장염의 각 소견이 보이는바, 위 사인에 우선하는 사인으로 보기는 어렵지만 사망에 기여하였을 가능성은 배제하기 어려우며, 또한 피해자의 혈중알콜농도가 0.15%로 검출되고 고도의 지방간 소견을 보이므로, 피해자가 만성 알콜중독일 가능성이 있고, 이 또한 사망의 촉진인자로 작용했을 가능성이 있다는 소견을 밝힌 점, ⑫ 그 밖에 피해자의 외상으로 우측 대퇴부 내측에 5.5 × 3.5㎝ 크기의 피하출혈과 우측 무릎 앞 부위에 작은 피하출혈 및 표피박탈 등이 확인되었는데, 이는 피해자의 사망과는 직접적 관련이 없는 상처들로서 화장실에서 넘어지는 과정 등에서 입은 상처로 보이는 점 등을 종합하면, 피해자에게 허혈성 심장질환 등 여러 질환이 있었고, 피고인의 폭행으로 피해자가 사망함에 있어 위와 같은 지병이 사망 결과에 적지 않은 영향을 주었다고 하더라도, 사인인 흉복부 손상에 의한 다량의 실혈의 직접적 원인이 된 피고인의 폭행과 사망 사이에 상당인과관계가 없다고 할 수 없으며, 또한 피고인은 피해자가 장기간 동안 식사도 제대로 하지 않고 술만 마셔 몸이 극도로 쇠약해져 있다는 사실을 잘 알고 있었으므로, 체격상으로도 왜소한 피해자의 왼쪽 옆구리 부위를 강하게 폭행할 당시에 이미 그 폭행으로 인하여 피해자에게 사망과 같은 중대한 결과가 초래될 수 있다는 점을 어느 정도 예견할 수 있었다고 할 것이며, 그와 같은 결과가 이례적인 일이라거나 통상적으로 일반인이 예견하기 어려운 것이라고 할 수 없으므로, 변호인의 위 주장은 받아들이지 아니한다.

B. Determination of mental suffering from mental illness

According to the above evidence, the defendant's act before and after the crime of this case, the defendant's ordinary drinking volume, drinking volume at the time of the crime, and the defendant made a statement in detail during the whole process of the crime of this case, although he is found to have dysing a considerable amount of alcohol at the time of the crime of this case, in light of various circumstances such as the defendant's behavior before and after the crime of this case, the defendant's ability or decision-making ability to discern things under the influence of alcohol at the time of the crime of this case, and the defendant's above assertion by the defense counsel is not accepted.

The crime of this case was committed by the defendant by cutting 50,00 won in cash, which was located inside the right side of the victim's drinking, and the victim was sentenced two times on the right side side of the victim's drinking on the ground that the victim was under the influence of alcohol and annoyinging. The crime of this case was committed by the victim's assaulting the victim on the ground that the victim was under the influence of alcohol and allowed annoying, and eventually caused his death. The defendant committed the crime of this case. The defendant committed the crime of this case by assaulting the victim on the ground that the victim was under the influence of alcohol, breathing, and annoying, and causing death. The result caused the victim's death. The victim's serious life cannot be deducted until now. The defendant did not compensate the victim's bereaved family members at all, and the defendant was sentenced two times a suspended sentence and was sentenced one time due to the violation of the Punishment Act, such as rape, night-off, intrusion, larceny, and violence, etc., and the punishment corresponding to the crime of this case should be punished again.

However, in light of all the circumstances such as the defendant's age, character and conduct, intelligence and environment, relationship with the victim, motive, means and consequence of the crime, and circumstances after the crime, etc., the punishment as ordered shall be determined by considering the following: (a) the defendant appears to have reached the crime of this case by contingency; (b) the amount of money and valuables stolen by the defendant is not much divided; (c) the defendant's mistake is currently divided; and (d) the defendant's age, character and conduct, intelligence

jury verdict and sentencing opinion

Dog Dog Dog Dog Dog

○ Theft

- Results of verdict: Opinions of innocence of seven jurors

○ Crimes of Violence Death

- Results of a verdict: All the seven jurors guilty.

Sentencing Opinion on the crime of assault homicide

○ Imprisonment with prison labor for a maximum term of three years

Reasons to pronounce a judgment different from the jury verdict;

1. The same part of the judgment with the jury's verdict;

Of the facts charged in the instant case, the member found guilty of assault and death committed by the jury.

2. The portion different from the jury's verdict;

(a) Jurors's verdict;

Jurors delivered a verdict of innocence to the purport that there is insufficient proof that the Defendant stolen 50,000 won in cash of the victim due to the unanimous negligence on the facts charged of the larceny of this case.

B. Determination of party members

(1) Defendant’s assertion

The defendant asserts that the victim paid 50,000 won in cash as the victim's drinking to the defendant, and that the defendant was not a theft.

(2) Determination:

(6) On October 28, 2008, the following facts acknowledged by the evidence are as follows: ① the Defendant first dices with the victim as her first frank around October 28, 2008; ② 1:00 on October 29, 200 to 12:00 on the following day, the Defendant again her dices with the victim at ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 16:09 on the same day, and the Defendant again withdrawn KRW 20,000 on the same 200.

C. Conclusion

Therefore, since the facts charged of the larceny of this case can be found guilty, it is so decided as per Disposition by recognizing the conviction of larceny differently from the jury's verdict.

Judges Jin-Seng-type (Presiding Judge)