Defendant

Defendant and Prosecutor

Latherather

Attorney Im Im Impreh Sung (Korean Civil Code)

Daegu District Court Decision 2006Gohap1565 Delivered on June 8, 2006

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) An insane;

Although the Defendant was in a state of mental disorder due to mental fissionation and drinking at the time of each of the crimes in this case, the Defendant was not acquitted and the Defendant was found to have been in a state of mental disorder and mitigated the punishment. The judgment of the court below is erroneous in the misapprehension of legal principles as to mental disorder

(2) Unreasonable sentencing

Even if there is no domestic mental disorder, the punishment sentenced by the court below is too unreasonable in light of various circumstances, such as the fact that the defendant does not simply lead to the non-indicted, thereby resulting in any contingent crime of this case, his depth is divided, and is suffering from mental illness.

(b) Prosecutors;

As long as it is objectively evident that there was no fact that the Nonindicted Party sent mobile phone text messages that the Defendant claimed from the Nonindicted Party, the Defendant should be deemed to have notified the Nonindicted Party of his intent to cause harm and injury by making a false report as described in Articles 2 and 3 of the instant facts charged. Even if the harm and injury was caused by the third party’s act, in light of various circumstances, such as the above fact and the fact that when the Defendant reports to the police that the explosives were installed to the subway station, the reporter may be judged as co-offender depending on the credibility of the reported contents, it is unreasonable to change the nature of the crime of intimidation depending on who is the installer of the explosives in light of the content of the harm and injury notified. In light of the social general legal sentiment, the lower court acquitted the Defendant of each of the instant facts charged, which erred by misapprehending the legal principles as to the establishment of the crime of intimidation, which affected the conclusion of the judgment, and where it was reversed due to the foregoing reason, one year of imprisonment is insufficient to achieve the purpose of punishment.

2. Determination

A. As to the defendant's assertion of mental disorder

According to the evidence duly admitted by the court below, it is acknowledged that the defendant had a weak ability to discern things or make decisions due to mental fission at the time of each of the crimes of this case, but in light of the circumstances, means and methods of each of the crimes of this case, the defendant's behavior before and after the crime of this case, etc., it does not appear that the defendant did not have the above ability, and it does not seem that the defendant drinks alcohol to the degree that it would fall into such a condition. Thus, this part of the defendant's argument

B. Regarding the Prosecutor’s assertion of misapprehension of the legal principle

(1) Summary of the facts charged in this case

Of the facts charged in this case, the summary of each intimidation is that "the defendant was sent text messages to the defendant's house located in Seo-gu, Daegu (detailed address omitted) on March 16, 2006, and the defendant's cell phone (number omitted) calls to the Daegu Provincial Police Agency 112 reporting center and received reports from the defendant, and "the phone number of the person who sent text messages to the victim was known about (portable phone number omitted)." Accordingly, the victim's cell phone number was called "the victim's cell phone number was known to the victim's cell phone number that he would cause serious harm to the victim's life and facility due to the rapid spread of discharge, and the victim's life and facility was destroyed and damaged, and the victim's cell phone number was destroyed and the victim's cell phone number was destroyed and the victim's cell phone number was destroyed and the victim's cell phone number was destroyed and the victim's cell phone number was destroyed and the victim's cell phone number was destroyed and the victim's mobile phone number was found to be the victim's cell phone number."

(2) The judgment of the court below

In a crime of intimidation, the term "Intimidation" means notifying the intent to cause harm and the occurrence of harm and injury must be directly or indirectly affected by the intent of the actor. Thus, in the case of notifying harm and injury by a third party's act, it may be deemed that the third party's act that may cause such harm and injury may be affected by the intent of the informed person, and if not, it cannot be viewed as intimidation even if the other party actually caused fear, it cannot be viewed as intimidation. According to the records, the defendant's notification that the third party sent the defendant's cell phone phone with a letter stating that the occurrence of harm and injury may depend on the defendant's will, and it is difficult to see that the third party's act may lead to the occurrence of harm and injury, and since there is no surrounding situation to see it, this part of the facts charged was acquitted on the ground that it constitutes a case where there is no proof of crime.

(3) Judgment of the court below

In light of the records, we affirm the above recognition and judgment of the court below as just, and there is no error of law by misunderstanding legal principles as to the establishment of a crime of intimidation as alleged in the grounds of appeal.

C. As to the assertion of unreasonable sentencing by the defendant and prosecutor

The Defendant committed each of the instant crimes since he was sentenced to imprisonment with prison labor for the same crime, etc. on June 8, 2005 at the Daegu District Court sentenced ten months to damage goods for public use, etc. on January 22, 2006. The Defendant committed each of the instant crimes on the grounds that the execution of the instant punishment was not completed on January 22, 2006. The circumstances and details of each of the instant crimes, the instant criminal facts paragraph (2) and the crime, such as the suspension of operation of the former section of the Daegu subway No. 1 Line No. 1 of the Daegu subway No. 1 for one hour in order to ensure the safety of passengers and to confirm whether the installation of explosives is installed due to the same crime. Meanwhile, in light of the fact that the Defendant committed each of the instant crimes without a mental disorder, the Defendant committed each of the instant crimes after the commission of the crime, and other various circumstances revealed in the records and pleadings, it is deemed that the sentence imposed by the lower court is deemed reasonable, and it is too heavy or unreasonable.

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Jo Jong-dae (Presiding Judge)