(영문) 광주지방법원 2013.03.27 2012노2303 | 리걸엔진

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(영문) 광주지방법원 2013.03.27 2012노2303

폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등

Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. Summary of grounds for appeal;

A. Although there was a mistake of facts and misapprehension of legal principles (as to the judgment of the court below of first instance), the defendant did not use a knife, which is a dangerous object at the time, and even if the defendant used a knife when threatening the victim, the Act on the Punishment of Violences, etc. was not applied at the time of the assault, and thus, the Act on the Punishment of Violences, etc. cannot be applied. Although there was no evidence to acknowledge that the defendant's assault caused an injury to the victim of an internal blood transfusion, etc., the judgment of the court below convicting the defendant of this part of the charges

B. Each sentence imposed by the court below on the defendant (one and half years of imprisonment with prison labor of the court of first instance, and three months of imprisonment with prison labor of the court of second instance) is too unreasonable.

2. Determination

A. Determination 1 ex officio prior to the determination as to the Defendant’s assertion on the grounds of appeal, the instant case No. 2012No2303, which is the appellate case against the judgment of the court of first instance, was consolidated in the oral proceedings of the court of this case, which is the second instance against the judgment of the court of first instance. Since each of the offenses in the judgment of the court of first and second is concurrent crimes under the former part of Article 37 of the Criminal Act, each of the offenses in the judgment of the court of first and second shall be judged at the same time in accordance with Article 38 of the Criminal Act, and thus, the judgment of the court of the court of first instance cannot be maintained. (2) In addition, the prosecutor applied for changes in the indictment of the judgment of the court of first instance to the effect that “an oral and internal blood transfusion” was changed to “an oral blood transfusion,” among the facts charged in the judgment of the court of first instance, and this is changed to the subject of the judgment.

3. However, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.

참조조문

-폭력행위 등 처벌에 관한 법률

-형법 제38조

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