Hello. Attorney Lee Young-kyung of Cheongchul Law Firm is speaking.

Today, we will take a look at the Supreme Court ruling of case number 2023do18812 delivered on June 13, 2024, which outlines the criteria for judging the core elements of the special injury and special intimidation offenses regarding ‘carrying a dangerous object’. Does it mean that one must actually have a dangerous object in hand to meet the criteria?

[Question]

What does it mean to ‘carry a dangerous object’ in the context of special injury and special intimidation offenses?

[Answer]

1. Overview of the case

1) Summary of the charges

The charges in this special injury and special intimidation case are as follows:

“The defendant assaulted and threatened the victim for about 4 hours and 30 minutes after a dispute arose concerning a monetary issue at the victim's residence around 2 AM on January 30, 2023. The defendant hit the victim's head several times with his hands, kicked the victim in the side, and threw a chair and bowls from the kitchen at the victim. Furthermore, holding a knife (total length 30cm, blade length 20cm) from the kitchen, he threatened, 'Should I stab him in the face with this knife, or should I slit his throat?' and stabbed a kitchen chair with the knife and hit the victim's head multiple times with it. As a result, the victim sustained injuries including lumbar pain requiring about 2 weeks of treatment.”

2) Decision of the lower court

The lower court found the defendant not guilty of special injury and special intimidation, reasoning that it was difficult to view the defendant as having used a dangerous object to assault or threaten the victim, and only recognized the charges of simple injury and intimidation. The reasons for this decision are as follows:

a) Although it appears that a knife caused damage to the kitchen chair, considering the height of the chair, it seems difficult for the defendant to stab while seated.

b) As the defendant claimed, it is hard to rule out the possibility that the kitchen chair was damaged while the defendant was falling near the kitchen and leaning on the knife that had fallen towards his abdomen.

c) The victim's testimony is inconsistent, which undermines its credibility. The victim stated, 'The defendant assaulted me and took a knife from the kitchen sink area to threaten me, and used that knife to stab the kitchen chair and sink,' but the defendant’s account of how he went to get the knife and his actions with it were inconsistent.

2. Supreme Court's ruling

However, the Supreme Court found the lower court's judgment to be incorrect and remanded the case. The key points of the Supreme Court's ruling are as follows:

1) The meaning of ‘carrying a dangerous object’

The Supreme Court clarified the meaning of ‘carrying a dangerous object’ which is an element of the special injury and special intimidation offenses. The Supreme Court explained that “here, ‘carrying’ a dangerous object refers to the actual possession or being on one’s person of a dangerous object with the intent to use it at the scene of the crime.” This reaffirms the existing case law stance.

2) Criteria for determining intent to use a dangerous object at the crime scene

The Supreme Court provided factors to consider in assessing whether there was an intent to use a dangerous object, stating that “the defendant's motive for the crime, the circumstances of carrying the dangerous object and manner of use, the relationship between the defendant and the victim, and circumstances before and after the crime” should be comprehensively regarded.

3) Importance of actual use

The Supreme Court stated, “as long as the defendant possessed or had on his person a dangerous object with the intention to use it at the scene of the crime, it is not required for the defendant to have actually used it in the commission of the crime.” This also reaffirms existing legal principles.

4) The meaning of ‘carrying’

The Supreme Court interpreted the meaning of ‘carrying’ broadly. “To say that one has ‘carried’ a dangerous object, it suffices that the defendant is in a position to exercise control over the dangerous object at the scene of the crime, thus being in a state to use that object immediately, without necessarily having to physically hold the object or having it attached to him.” This focuses the concept of 'carrying' more on control and availability than merely physical possession.

5) Specific judgment regarding this case

The Supreme Court analyzed the specifics of this case as follows: First, regarding the credibility of the victim’s testimony, the Supreme Court offered a different perspective. They considered minor inconsistencies in the testimony of a victim who had endured prolonged violence and intimidation to be understandable while noting that there was consistency in the core aspects. This could serve as an important criterion in evaluating the testimonies of domestic violence or dating violence victims.

Secondly, they considered the characteristics of the crime scene, noting that it involved violent acts lasting for 4 hours and 30 minutes in a confined space. This is an important factor in assessing the level of fear and threat the victim likely experienced.

Thirdly, they emphasized the significance of the presence and accessibility of the knife, acknowledging that even if the defendant did not directly hold the knife, being in a position to use it at any time could qualify as ‘carrying’.

Lastly, they noted the defendant's behavior and speech. The defendant repeatedly mentioning the presence of the knife and indicating its usability becomes a crucial basis for concluding that he committed the crime ‘carrying a dangerous object’.

Considering these circumstances as a whole, the Supreme Court concluded that the defendant's acts could constitute special injury and special intimidation ‘carrying a dangerous object’.

3. Implications

This ruling confirms, once again, the possibility of applying special intimidation and special injury charges even if the actual object is not used, provided it was in a usable state at the crime scene, by interpreting the concept of 'carrying a dangerous object' broadly as per existing legal principles.

Therefore, if you are involved in a related case, it is recommended to consider this ruling in your response.

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