2016No3529 Injury

A

Defendant

On the port date of prosecution, and the trial of Yellow Jinia

Attorney B

Busan District Court Decision 2016Ra151 Decided August 24, 2016

February 10, 2017

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

A. Error of mistake

The victim's injury was a crime committed by any person who is in a relationship with the victim, and the defendant confirmed the scene of the crime after returning home, and provided relief to the victim, and although the victim was not injured, the court below convicted the defendant. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant (two years of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Summary of the facts charged

The defendant is a disabled person of class IV with physical disability who has difficulty in ordinary legs, and the marital relationship between the victim C (in women, 48 years of age) and the husband who reported the marriage on September 8, 200.

On September 15, 2015, around 20:49, the Defendant entered the Defendant’s house in Busan Shipping Daegu D apartment No. 102 Dong 1205, about September 15, 2015, and 1205, and she listened to the breath of the Defendant’s speech that she would drink from the victim, and she expressed the victim’s desire to do so, when her left part of the victim’s hand.

이에 피해자가 왜 때리느냐고 하면서 피고인을 밀치자, 피고인은 더욱 화가 나 피해자의 머리채를 잡은 채 끌고 다니면서 벽에 피해자의 머리를 찧은 다음, 바닥에 내동댕이쳐 넘어뜨리고, 대나무 막대기로 피해자의 온몸을 수회 때리다가 목을 조른 후, 피해자의 머리를 잡고 거실에 있는 테이블에 힘껏 밀쳐 부딪히게 하여 정신을 잃게 하였다.

As a result, the Defendant inflicted injury on the victim, such as cerebral cerebral cerebral cerebral cerebral cerebral dy that requires approximately eight weeks medical treatment.

B. The judgment of the court below

The court below clearly stated that the victim is a criminal (the victim)

Although the defendant was prepared with no relation to this case on November 2015, 2015, the victim was requested by the defendant to recover the marital relationship with the husband.

The victim's statement may be believed to be prepared, and the victim's statement was 20:49, time for the defendant's returning home, 21:02, time for the victim's rescue report was 21:16, and this part of the victim's statement was contrary to objective facts, but the victim's statement was 10:00,000,000 won and was 2:00,000,000,000 won and was 1:5:0,000,000 won, and 1:0,000,000 won, and 2:4:0,000, was 1:0,000,000 won, and 1:0,000 won, and 2:0,000, were 1:0,000,000 won, and 1:0,000,000 won, and 2.

C. Judgment of the court below

The direct evidence that corresponds to the facts charged that the defendant injured the victim lies in the investigation report (the result of the CCTV analysis in suspect's residence), investigation report (the results of the CCTV analysis), investigation report (CCTV access analysis), investigation report (CCTV investigation) between the victim's statement and the victim's statement from 07:30 to 21:40 on September 15, 2015, that there is no person who has taken off the defendant under 1205 on the CCTV inside the apartment entrance and the elevator CCTV system (the result of the CCTV analysis in suspect's residence), and the evidence duly adopted and examined by the court below and the court below are insufficient to believe that the victim's statement is not sufficient to recognize that the defendant injured the victim, and it is insufficient to find the defendant guilty of the facts charged in this case as the result of the above CCTV analysis alone, and therefore, the defendant's assertion is reasonable (the relation between the defendant and the victim is not good, and the circumstances of the ex post facto assault from the victim and the extent of other evidence such as the victim's diagnosis report is merely evidence related to the victim's degree of injury).

1) The victim’s statement is difficult to believe for the following reasons.

A) The Defendant’s boarding time taken on an apartment elevator CCTV is 20:53:59, the time when the Defendant reported the victim’s appearance in video 21:01:53, and 112, the time when the Defendant reported the victim’s appearance 21:16, and the time before the Defendant completed the assault by entering the house and completed the assault and taken the video is not less than seven minutes. Considering the rapid time of the elevator CCTV as alleged by the Prosecutor’s Office, the Defendant’s entry into the apartment is merely 11 minutes even if the time when the Defendant specified the time of the elevator CCTV as 20:49, considering the high time of the elevator CCTV as alleged by the Prosecutor’s Office, the interval is merely 11 minutes if the Defendant entered the apartment. (B) The victim argued that the Defendant was 30 minutes after making a cleaning and dispute at the house and assaulted for more than 10 minutes.

C) According to the appraisal report by the medical research institute in the law of the Seoul National University of Law, it is difficult to see that the victim is exposed to the color side of the body, left, and sloping, etc. that can be seen as a sub-explosion, which can be seen as a sub-explosion. The victim cannot be seen as photographing the damaged body (within the number of times) by clearly showing the change in color that can be observed by the victim. A relatively similar level of color is relatively new type of blood, and the change in body parts seems to have occurred within 1 to 2 days after the occurrence of damage. It is difficult to see that the change in body parts is similar, and it is difficult to see that the victim has suffered repeated damage on several days. The victim's shot and red materials are presumed to have caused a large amount of speaking and blood around the reproductive machine, and there seems to have been considerable quantity of speaking on the side of the victim, and it seems that the victim has not been able to have taken a large part of time after the victim's body's appearance (excluding a large part of the victim's photograph.

D) The victim argued that the Defendant assaulted on the front side of the instant case 14-day and the front side of 15-day new wall, and that it was caused by the Defendant’s assaulting on the front side of the instant case. However, the medical research institute’s expert opinion as seen earlier appears to be difficult to see that it occurred repeatedly on several days, since the degree of skin transfusion was similar to that of the blood. Furthermore, the Defendant confirmed whether her husband and wife agreed to do so at 11:0 p.m. and 13:37 p.m. and talked with the victim at 11:0 p.m. and 13:37 p.m., and if her statement was made by the victim, the Defendant was aware that the Defendant was not in a situation where her husband and wife could come to a meeting. As such, the Defendant did not agree to such a meeting as above.

E) The victim stated that the reason that he was assaulted was frightened by the prosecutor's office that he was frightened, and that it was when the defendant was frightened due to the defendant's bridge because of the defendant's bridge, while the court below reversed the judgment of the court below that the defendant was frightened to the extent of why the person was frightened in the previous trial.

F) On September 18, 2015, the third day after the occurrence of the accident, the victim rejected the victim's statement when the police officer visited the hospitalization room, and even if explaining the victim's rest and emergency interim measures, the victim did not actively want it. However, the defendant actively urged the investigation agency to take the offender and urge the investigation.

G) On November 6, 2015, the victim, who was the birth day of the defendant, 2015, sent meals to the defendant in written form, and prepared a written confirmation that the defendant does not have any relation to this case. On November 8, 2015, it seems that the above written confirmation was prepared by the victim's voluntary will, not by the defendant's intimidation, in light of the fact that the defendant was well able to live in the future, and rather sent the written message that he did not have any relation to his work.

H) The victim, immediately after being hospitalized in the hospital, did not refuse the police to take a measure of prohibition of access ex officio, and did not refuse to take care of the Defendant, and prepared a written confirmation, such as the preceding paragraph, after discharge. Rather, the Defendant refused to take care of the key repair shop and opened an apartment door, and acted as a person who suffered serious assault as stated in the facts charged by the Defendant, such as opening an apartment door, etc.

I) Although the defendant found the victim and immediately reported 112, 119 and took a video image on a mobile phone without reporting it, it usually leads to actions different from her husband. However, the victim's awareness is not clear and knife knife knife snife, and the victim was serious enough to be suspected of not immediately killed. The defendant and the victim were frequently fighting and suspected of the victim's external appearance, so the defendant is likely to be identified as a criminal in light of the victim's tendency so that the defendant might be a criminal. The defendant's change in the contents of the lawsuit by the defendant that delayed time due to the need to take first aid, such as bucks and knife, by causing the victim's writing, is acceptable.

2) The CCTV analysis result alone cannot be readily concluded that there is no person who enters the instant crime scene, other than the Defendant, between 07:30 on September 15, 2015 and 21:40 on September 15, 2015.

A) The apartment house of the Defendant’s residence is 50 households live in 1st, 25 floors, and the investigation report (the result of the CCTV analysis of the suspect’s residence) is only to confirm a person between the 12th floor by checking only two CCTV inside the elevator and the 12nd floor. Since there is no CCTV in front of the 1205 front of the 1205 front of the entrance, if the Defendant was to go to the Defendant’s house, or to go to the Defendant’s house through the stairs going to the other 12th floor, or to go to the stairs from the 1st floor to the 1205 upper floor.

B) An investigation report (rest of the victim's condition based on the domination line) concluded that, between 15:51 p.m. and 18:02 p.m. visiting around 18:05 p.m., the victim did not have any injury until 18:05 p.m., on the assumption that the Defendant sent the goods to the victim at around 15:51 p.m. and the door-to-door program operator visited at around 18:02 had no suspicion of apartment residents by analyzing the CCTV images installed within the entrance and the elevator after 18:02 p.m. from among visitors after 18:02, the victim did not appear to have been asked to have been asked to the victim at around 18:0 p.m. at around 20 p.m., at around 18:0 p.m., the Defendant had no suspicion of having been asked to the victim at least 1:0 p.m. at around 20 p.m., the victim had no suspicion in the prosecution.

D) The victim was distinguished from R and S in one month with the male and the female sex, and they were not able to hold a selection process when they were given and received letters with the victim. At the same time, S was not able to see that the victim was a male. At the same time from September 14 to May 5, 201, on September 14, 2013 before the instant case, S was able to drink and drink the victim, and R was able to scam with the Defendant at the Defendant’s toilet around October 9, 2013. At the same time, R was scambling with the movement at around September, 2013, and was scambling the Defendant. The Defendant’s assertion that there was a doubt that there was an internal relation with the victim, such as paying the medical expenses of this case in lieu of KRW 13.8 million, and that there was no scambling

E) If the offender entered the Defendant’s house for the purpose of causing injury to the victim, such as the purpose of internal relations or the instant crime, as seen in paragraph (1) in which the CCTV of the first floor and the elevator does not leave his own form on the CCTV of the first floor and the elevator, with due care, such as getting off the elevator and getting off the elevator on the 12th floor, or going up from the stairs of 1205 on the underground floor, it is natural that the CCTV was not taken by the offender on CCTV.

3. Conclusion

Therefore, the defendant's appeal is reasonable, and the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows through pleading.

【Discretionary Judgment】

The summary of the facts charged in this case is as stated in Article 2-1(a) of the Criminal Procedure Act, and this constitutes a case where there is no proof of a crime as seen in Article 2-2(c) of the same Act, and thus, the judgment of not guilty is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment is announced in accordance with

The presiding judge, senior judge and senior judge

Judges Noh Jeong-hee

Judges Park Jong-jin