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(영문) 서울고등법원 2018.06.07 2018노37

강도상해

Text

All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) Defendant A was in a state of mental and physical weakness under the influence of alcohol at the time of the instant crime.

2) The lower court’s punishment against Defendant A who is unfair in sentencing (4 years of imprisonment) is too unreasonable.

B. The lower court’s punishment against Defendant B (4 years of imprisonment) is too unreasonable.

(c)

Defendant

C1) In misunderstanding of the facts and legal principles, Defendant C rejected Defendant A’s proposal to commit the instant crime, thereby not soliciting Defendant A, B, and committing CCTV or assaulting the victim. However, it is irrelevant to the direct commission of the instant crime. As such, the joint principal offender for the crime of robbery cannot be established.

Nevertheless, the lower court recognized Defendant C as a joint principal offender for the instant crime. In so doing, the lower court erred by misapprehending the legal doctrine as to a joint principal offender, or by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

2) The lower court’s sentence against Defendant C, which was unfair in sentencing (three years and six months of imprisonment), is too unreasonable.

(d)

The sentence of the lower court on the Defendant A and B of the Prosecutor is too uncomfortable.

2. Determination

A. Determination as to Defendant C’s misunderstanding of the facts and misapprehension of the legal doctrine 1) In the co-offender relationship that two or more persons of the relevant legal principles jointly process for a crime, the conspiracy does not require any legal penalty, but only constitutes a combination of intent to jointly process a crime and realize such crime. As such, there was no process of the whole conspiracy.

Even if there are two or more persons, a public contest relationship is established if a combination of doctors is made successively or implicitly between them, and even those who did not directly participate in the act of execution, are subject to criminal liability as a joint principal offender for the act of another person, and there is no direct evidence as to such a public contest.