(영문) 수원지방법원 2017.02.03 2016노6196 | 리걸엔진

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(영문) 수원지방법원 2017.02.03 2016노6196

폭력행위등처벌에관한법률위반(공동폭행)

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The Defendant was unilaterally against A, and there was no assault against A.

B. The sentence of the lower court’s improper sentencing (an amount of KRW 500,000) is too unreasonable.

2. In light of the difference between the method of evaluating the credibility of the first instance court and the appellate court in accordance with the spirit of the substantial direct trial principle adopted by the Criminal Procedure Act as an element of the trial-oriented principle, the first instance court’s decision on the assertion of mistake of facts was clearly erroneous in the first instance court’s determination on the credibility of the statement made by the witness of the first instance court in light of the contents of the first instance judgment and the evidence duly examined by the first instance court.

Unless there exist extenuating circumstances to see the credibility of the statement made by a witness of the first instance trial and the result of further examination of evidence conducted by the time the appellate trial is final and conclusive, the appellate court should not reverse without permission the first instance judgment on the ground that the first instance judgment on the credibility of the statement made by a witness of the first instance court is different from the judgment made by the appellate court (see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012). In light of the above legal principles, a thorough examination of the evidence by the lower court, such as the witness A and the J’s legal statement by the lower court, was clearly erroneous in the lower court’s determination on the credibility of the statement made by the witness.

There is no special reason to view that there is no special circumstance, and the defendant can recognize the fact that he assaulted the victim as shown in the facts charged, so the defendant's assertion of

3. There are extenuating circumstances, such as the Defendant’s primary offender without previous conviction, and the Defendant suffered from an unexpected injury in the course of disputing the victim of the instant assault.

However, in the court below, the punishment has been determined in consideration of the above favorable circumstances, and in the trial.

참조판례

-대법원 2012. 6. 14. 선고 2011도5313 판결

유사 판례

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