2016No3456 Violation of the Punishment of Violence, etc. Act (a group, deadly weapon, etc.)

(Name of recognised Crime: Special Intimidation), Firearms, Swords, Explosives, etc.

Violation of applicable law

① (1)(75 years old, over), free of office

Residentialization City

whose place of registration is known

Prosecutor

Kim Jong-hae (Court Prosecution) and Kim Jae-hwan (Court Decision)

Attorney Park Jong-soo (Korean National Assembly for the defendant)

Suwon District Court Decision 2014Gohap2984 Decided October 24, 2014

Suwon District Court Decision 20146417 Decided June 17, 2015

Supreme Court Decision 2015Do10254 Decided May 24, 2016

July 22, 2016

Of the judgment of the court below, the guilty part and the innocent part shall be reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 40 hours.

The prosecutor's appeal against dismissal of public prosecution among the judgment below is dismissed.

1. The judgment of the court below on the guilty part and the acquittal part

A. Summary of grounds for appeal

1) misunderstanding of facts and misunderstanding of legal principles

피고인은 윤AA에게 “ 총으로 쏴 죽인다. ” 고 말하면서 유해조수 용도로 허가받아 보관 중이던 공기총을 꺼내어 들고 총구를 하늘로 향하게 한 다음 1회 격발함으로써 총포를 사용하였다. 피고인의 위 격발행위는 구 총포 · 도검 · 화약류 등 단속법 ( 2015. 1 .

6. The term “use of guns, etc.” under Article 17(2) of the former Act on the Safety Control of Firearms, Swords, Explosives, Etc. (Act No. 12960) constitutes “use of guns, etc.” (hereinafter “former Act”). Nevertheless, the lower court rendered a judgment not guilty on the violation of the former Act on the Control of Firearms, etc. on the ground that air guns did not contain ball or blank cartridges on the ground that they were not charged with air guns. Accordingly, the lower court erred by misapprehending the facts of innocence or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

The sentence of the lower court (six months of imprisonment, one year of suspended execution, and forty hours of community service) is too unhued and unreasonable.

B. Ex officio determination

The prosecutor's judgment on the grounds for appeal shall be considered ex officio prior to the judgment.

With respect to the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) among the facts charged in the trial, the prosecutor filed an application for permission to change the indictment to "special intimidation" in Articles 3 (1), 2 (1) 1 and Article 283 (1) of the Punishment of Violences, etc. Act and Article 283 (1) of the Criminal Act, "Article 284 and Article 283 (1) of the Criminal Act" with regard to the violation of the Punishment of Violences, etc. Act (a violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) and the subject of the trial was changed by this court's permission. Accordingly, the conviction part of the judgment below cannot be maintained.

C. Judgment on misconception of facts and misapprehension of legal principles

1) Article 17(2) of the former Inspection and Control of Firearms Act provides that “A person who has obtained permission to possess guns, swords, gas sprayers, electroshock weapons, or crossbows shall not use such guns, swords, gas sprayers, electroshock weapons, or crossbows except for the permitted purpose or other justifiable grounds.” Article 73 Subparag. 1 of the same Act provides that a person who violates the above provision shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won. The purport of the former Inspection and Control Act prohibiting a person who has obtained permission to use such guns, swords, gas sprayers, electroshock weapons, or crossbows (hereinafter “Guns, etc.”) except for cases where the permitted purpose or other justifiable grounds exist, to prevent in advance any danger and disaster and maintain public safety by strictly regulating the use of guns, etc. with high risk that may be used for life weapons.

위와 같은 구 총검단속법 제17조 제2항의 입법취지와 내용 등에 비추어 보면 , 위 규정에서 정한 총포 등의 ' 사용 ' 이란 총포 등의 본래의 목적이나 기능에 따른 사용으로서 공공의 안전에 위험과 재해를 일으킬 수 있는 행위를 말한다. 그러므로 총포 등의 사용이 그 본래의 목적이나 기능과는 전혀 상관이 없거나 그 행위로 인하여 인명이나 신체에 위해가 발생할 위험이 없다면 이를 위 규정에서 정한 ' 사용 ' 이라고 할 수는 없을 것이나, 반드시 탄알 · 가스 등의 격발에 의한 발사에까지 이르지 아니하였다 하더라도 그와 밀접한 관련이 있는 행위로서 그로 인하여 인명이나 신체에 대하여 위해가 발생할 위험이 초래된다면 이는 총포 등의 본래의 목적이나 기능에 따른 사용으로서 위 규정에서 정한 ' 사용 ' 에 해당한다고 봄이 타당하다 . 2 ) 원심이 적법하게 채택하여 조사한 증거에 의하면, 피고인이 공소사실 기재 일시, 장소에서 윤AA과 피고인이 키우던 개가 죽은 경위를 둘러싸고 말다툼하던 중 “ 총으로 쏴 죽인다. ” 고 말하면서 유해조수 용도로 허가받아 보관 중이던 공기총을 꺼내어 들고 총구를 하늘로 향하여 1회 격발한 사실을 인정할 수 있다 .

According to the above facts, the defendant showed the same attitude to inflict harm on leA, and caused the air gun above. Thus, regardless of whether leap has been exposed, it shall be deemed that the defendant caused the risk of harm to human life and body, which is one of the typical risks of air gun. Therefore, the defendant's act of shooting constitutes the use of gun under Article 17 (2) of the former Inspection Control Act, and thus, the prosecutor's allegation of misconception of facts and misapprehension of legal principles as to the acquitted portion of the judgment of the court below is with merit.

2. Judgment on the dismissed part of the judgment below

Although the prosecutor stated in the petition of appeal the whole scope of appeal "the scope of appeal", the prosecutor's appeal petition or statement of reasons for appeal does not contain any grounds for appeal concerning the dismissal of public prosecution among the judgment below, and the reasons for ex officio investigation cannot be found in the records. Therefore, pursuant to Articles 361-4 (1) and 361-3 (1) of the Criminal Procedure Act, the prosecutor's appeal concerning the dismissal of the public prosecutor's appeal concerning the dismissal of public prosecution shall be dismissed. However, as long as the judgment of the court below on the part of conviction and the part concerning the acquittal is rendered, the

3. Conclusion

Since the public prosecutor's appeal concerning the dismissal of public prosecution among the judgment below is without merit, it shall be dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

On the other hand, among the judgment below, there are grounds for reversal of the above Paragraph 1-B of the judgment of the court below, and the prosecutor's appeal on the part of innocence also has grounds. Thus, without examining the prosecutor's argument of unfair sentencing, the above guilty part and the acquittal part are reversed under Article 364 (2) and (6) of the Criminal Procedure Act,

Criminal facts

1. Special intimidation;

피고인은 2014. 4. 28. 19 : 15경 화성시에 있는 식당에서 다른 테이블에 앉아 있던 피해자 윤AA ( 56세 ) 이 " 저 새끼가 개 죽은 것 때문에 신고를 했었어. " 라고 말한 것에 격분하여 피고인은 피해자를 " 총으로 쏴 죽인다. " 라고 말하며 위 식당 밖으로 나가 자신의 차량 안에 있던 흉기인 공기총 ( 총명 : APEX330 ) 을 꺼내어 들었고, 피고인을 따라

BB (the age of 52) of the victim, the victim's personal behavior, made the victim intimidation by means of one-time attacking as the total Gu has come to a large scale.

2. A person who is permitted to possess a gun in violation of the former Inspection and Control of Firearms Act shall not use the gun unless the permitted purpose of use or any other justifiable reason exists. Nevertheless, the defendant used the air gun for the purpose of threatening a victim as above at the time and place specified in paragraph (1).

Summary of Evidence

The summary of the evidence recognized by this Court is the same as that of the judgment of the court below, except for the addition of "a copy of permission to possess guns", and thus, it is acceptable in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 284, 283(1)(a) of the Criminal Act, Article 73 Subparag. 1, and Article 17(2) of the former Control of Inspection by Police Officers Act (the use of a gun for other than permitted purposes, the choice of imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions among the Reasons for Sentencing)

1. Social service order;

Article 62-2 of the Criminal Act

The reason for sentencing is an air gun as a tool for sentencing, and the fact that the method of committing the crime was very dangerous by threatening the victim, and that the victim seems to have experienced considerable fear is unfavorable. However, the victim is not subject to the punishment of the defendant, and there is no criminal record (the defendant was indicted due to the damage of property in around 2012, but the judgment of suspension of sentence became final and the two-year grace period has expired according to the above final judgment, and thus, is deemed acquitted pursuant to Article 60 of the Criminal Act), and the defendant is in depth against the crime is favorable. Other factors such as the motive and background of the crime, the circumstances after the crime, the defendant's age, character and behavior, the records and circumstances, and the environment, etc. are considered as a whole to determine the punishment as indicated in the order.

The presiding judge shall transfer the case to a judge

Judges Lee Young-hoon

Judges Kang Jae-won