2007Do3687 Murder, Attempt to Commit a Murder, Conspiracy to Commit a Murder

Justices Kim Hwang-sik(Presiding Justice), Kim Young-ran, Lee Hong-hun, Ahn Dae-hee(Justice in charge)

Main Issues

 * 1) The meaning of an impossible crime
 * 2) The case holding that an act of intending to murder a victim, but not achieving its intended purpose by using "Scopoliae rhizoma" and "Nutgrass galingale" which could cause a death if taken by a person by a dose beyond a certain quantity constitutes not an impossible crime, but the crime of attempt to commit a murder

Summary of Decision

 * 1) An impossible crime refers to a case where there is no possibility for a criminal result to occur or for legal interest to be infringed due to the nature of the criminal act.
 * 2) The case holding that an act of intending to murder a victim, but not achieving its intended purpose by using "Scopoliae rhizoma" and "Nutgrass galingale" which could cause a death if taken by a person by a dose beyond a certain quantity constitutes not an impossible crime, but the crime of attempt to commit a murder

Reference Provisions

 * 1) Article 27 of the Criminal Act
 * 2) Articles 27, 250(1) and 254 of the Criminal Act


 * Article 27 of the Criminal Act (Impossible Crime)

Even though the occurrence of a crime is impossible because of the means adopted for the commission of the crime or because of mistake of objects, the punishment shall be imposed if there has been a resulting danger, but the punishment may be mitigated or remitted.


 * Article 250 of the Criminal Act (Murder, Killing Ascendant)


 * (1) A person who kills another shall be punished by death, or imprisonment for life or for not less than five years.


 * Article 254 of the Criminal Act (Attempts)

Attempts to commit the crimes in the preceding four Articles shall be punished.

Reference Cases

 * 1) Supreme Court Decision 77Do4049 delivered on March 28, 1987 (Gong1978, 10761), Supreme Court Decision 85Do206 delivered on March 26, 1985(Gong1985, 664), Supreme Court Decision 98Do2313 delivered on October 23, 1998

[Defendant]Defendant

[Appellant]Defendant

[Counsel]Attorney Lee Sung-hwan

[Judgment of the court below]Seoul High Court Decision 2007No78 delivered on April 19, 2007

Disposition
The appeal shall be dismissed. The eighty-five days out of the total detainment days after the filing of the appeal shall be counted as part of the imprisonment term imposed as a main penalty.

Reasoning
This is to judge the Reasons for Appeal.


 * 1. As to the Grounds of Appeal No.1

An impossible crime refers to a case where there is no possibility for a criminal result to occur or for legal interest to be infringed due to the nature of the criminal act (refer to Supreme Court Decision 98Do2313 delivered on October 23, 1998).

According to the record, "Scopoliae rhizoma" and "Nutgrass galingale" have efficacy in chronic arthritis et al., but used to be used as poison due to their toxic contents, so they are boiled without lowering the toxicity and without mixing with other drugs and if a person drinks the infused liquid, though different result shall be caused depending on the dose and the person's physical constitution, the possibility that death might occur as a side effect shall not be ruled out, therefore for the court below to compile all evidence mentioned and maintain the judgment by the court of the first instance that the act committed by the defendant through conspiring with Kim Hyang Ja who is a codefendant for the court below by making the victim (the husband of Kim Hyang Ja) drink the liquid infused by boiling "Scopoliae rhizoma" or "Nutgrass galingale," which could cause a person to die if the person drinks over a certain amount, in order to murder the victim, who then spit the drink out causing the act to end up being an attempt, shall be judged to be a crime of murder attempt not an impossible crime, is justifiable and is not erroneous in the misapplication of legal principles as to an impossible crime or the violation of the rules of evidence.


 * 2. As to the Grounds of Appeal No.2 and No.3

The court below compiled all evidence mentioned and acknowledged the fact that the defendant gave an advice to Kim Hyang Ja on the phone to use a tie to strangle the victim to death which Kim Hyang Ja and Huh Jeom Jo followed by using a tie to strangle the victim to death, and judged that the defendant is a joint principal offender of a crime of murder, which is justifiable in accordance with the record as the judgment was reached through reasonable free conviction of the judge at a de facto trial, is not erroneous in the misconception of the facts against the rules of evidence or in the misapplication of legal principles as to a joint principal offender as argued in the Grounds of Appeal.


 * 3. Conclusion

Therefore, the appeal shall be dismissed, and part of the detainment days served after the filing of the appeal shall be counted as part of the main penalty, and the decision is delivered with the assent of all Justices who reviewed the appeal.

Source

 * Supreme Court Decision 2007Do3687 Delivered on July 26, 2007, Supreme Court Library of Korea

2007도3687