2. The defendant shall be punished by a fine of two million won.

3.In the event that the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting 20,000 won into one day.

4. One hundred days out of the detention days before a judgment of the original court is rendered shall be included in the period of detention in the workhouse;

5. The charge of attempted robbery among the facts charged in the instant case is acquitted.

The gist of the grounds for appeal by the defendant and his defense counsel is that the judgment of the court below which found the defendant guilty, even though the defendant did not commit the crime under paragraph (2) of the judgment of the court below, is erroneous by misunderstanding the facts and adversely affecting the judgment. Second, the punishment (one year of imprisonment with prison labor for the crime under paragraph (1) and imprisonment for life for the crime under paragraph (2) is too unreasonable

2. Determination:

A. Points of mistake of facts

(1) Summary of the charge of attempted robbery among the facts charged of the instant case

The defendant, as a taxi driver belonging to Sungdo Transportation Co., Ltd., worked for about 30 years ago with the victim C(64 years of age) and was virtually maintaining good-child relationship. At around 19:20 on December 15, 199, the victim's house located in Busan Dong-gu D requested continuous money from the victim as stated in the reasoning of paragraph (1) of the facts constituting the crime of the court below, but has been rejected onceever, the defendant is able to knife the victim with a knife with a knife, knife with a white knife, knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knif.

(2) The judgment of the court below

The court below found the defendant guilty of the above facts charged by comprehensively taking into account the witness F, G, H, I, and J's statements, the actual condition investigation report prepared by the judicial police officer, the investigation report prepared by K of the Busan East Police Station, the doctor L, and M's written diagnosis.

(3) Defendant’s lawsuit

Since the Defendant denies that there was no criminal act as stated in the above facts charged (hereinafter referred to as the "criminal act of this case") from the police to the court of law, it is reasonable to deny that the Defendant committed the crime of this case. Thus, the question is whether or not the Defendant committed the crime of this case, and the remainder of the evidence except the victim's statement, among the evidence presented in the court below, are transferred from the victim or indirect evidence, so in order to find the Defendant guilty of the facts charged of this case, the Defendant must have credibility in the victim's statement, and if there is no credibility, the above facts charged against the Defendant constitutes a case where there is no evidence that the Defendant committed the crime of this case among the victim's statements.

(4) Each statement made by the police of the victim, the prosecution, and the court below

피해자는, 일관하여 피고인이 눈 바로 밑에까지 얼굴에 횐색마스크를 착용하고 화장실 입구에서 칼로 피해자의 복부 등을 찌르고 돈을 훔쳐 가지고 갔다고 진술하고 있다.

However, with regard to the time of crime, the police stated that 18:30 was 11 hours in excess of the time indicated in the facts charged (the investigation record) but the Nsi belonging to the Defendant's sexual traffic (hereinafter referred to as "the instant taxi") did not engage in its business from 19:10 to 19:50 on the same day. The reading of CCTVmera tape by the Defendant was revealed to be objective fact that the Defendant was arranged at the early fest point of the Busan Bank from 19:51:26 to 19:52:20 on the first fest point of the Busan Bank (the investigation record was 124:125) and then the statement was changed to that time, and then the police officer's statement was thus stolen from the prosecutor's office to 19:10 on the 82 pages of the investigation record, and the victim's statement was 19:20 on the 6th day after the lapse of 19:0 on the 6th day of the trial.

(5) The credibility of the victim's statement

(a)The victim is less than the other eye, one eye, one knife, one knife, one knife, one knife, one knife, and the other knife one knife one knife one knife one knife one knife one knife one knife one knife one knife one knife the defendant's voice, and the victim's voice was the defendant's voice. However, according to the records, the victim's statement appears to have been caused by the fear or connotation of the victim, such as thoroughly regulating the door, and the victim's knife one knife knife knife knife knife knife knife knife knife knife knife.

(b)The statement of the de facto condition survey and the images attached thereto are as follows: (b)The victim, due to the instant crime, has reached a large number of skins on the floor, and in light of the fact that the victim was placed in the room, bed room, bed room, bed room, room, room, and toilet which are presumed to be each offender, and that he was observed by the State in front of the toilet, he could have been placed in the body or hand of the victim; (c) (b) the investigative agency did not have any blood reaction as a result of the assessment request on the following (c), if the victim appears to have been placed in the workplace or hand of the offender; and (d) the victim did not have any blood reaction as a result of the appraisal request on the other side and the Defendant’s second half.

(C) The Defendant made a detailed statement in detail before and after the time of the commission of the crime from the time when the Defendant was designated as the suspect at the investigative agency to the trial of the first instance. At the time of the commission of the crime, the summary of the statement is as follows 1, and it can be recognized as objective facts, such as the record of operation of the instant taxi and the relevant vehicle during the time period, and the time when the head of the Tong was arranged by the Defendant. (2) The Defendant’s lawsuit is relatively objective facts as stated in its reasoning.

In order to readily conclude that the Defendant’s appeal differs from objectively recognized records, and that there was an manipulation of Albaba as indicated in the reasoning of sentencing in the lower judgment, other participants should be presumed to have led to the occurrence of a situation consistent with the vehicle operation records by making the Defendant’s mother, operating the instant taxi, or explaining the current status of operation to the Defendant after operating the instant taxi. However, the reason for the crime cited in the foregoing facts charged is insufficient to serve as the motive for the Defendant to prevent the instant crime with the Defendant’s cooperation with the accomplice under a close plan. However, it does not seem that there is no other evidence to deem that there was another accomplice other than the Defendant.

(1) Prosecution by the defendant

The Defendant asserted that it is irrelevant to the instant crime, such as the operation of the instant taxi before and after the commission of the crime. The summary of the instant change suit over time after the commission of the crime is as follows.

At around 18:30, the Defendant: (a) boarded Q Q and Nonindicted R, his workplace, located in the same region as the Defendant, which was located in PP located in Busan, in front of the 'P' restaurant located in Busan, and (b) left Q to the Busan, the first place of his workplace, and received 7,600 won from R (the Defendant was identified as Q and R only in his name without accurately memory the name of Q at the time of the police statement at the time of the police statement; and (c) the name and location of Q and R were identified as the Defendant’s wife’s efforts to identify Q and R only during the trial of the lower court).

(C) Afterwards, the Y in the vicinity of the KY, the answer was made to the effect that the Nonindicted Z in the same company belonging to the same company, which was located at the nearest SY, was frightened, and that “the boomed was 30,000 won.”

Along to 19:40, the head of the Tong was arranged at the Chinese office and the early-dong branch of the Busan Bank, and it is to confirm whether the traffic accident agreement has been deposited.

After the cam, the three customers are born at the place, so that they can normally work until the time of shift, such as getting off from the Busan Jin-gu Office at around 20:05, and after the completion of their business, the non-indicted AA sn't drink.

(2) Operational records, etc.

The recording relationship indicated in the business analysis table of the defendant's car 18:31 showed the revenue of KRW 7,600 by operating 9.5km from around 18:31 to around 19:10 (2) thereafter, the defendant 2.1km from around 19:50 to around 2004.

(B) (The opening or closing of the text of the passenger is recorded) analysis was recorded as follows: 18:30 , 18:43 , 19:10 , 19:48 , 19:49 , and 20:04 , and 18:30 , 18:43 , 19:48 , 19:49 , and 20:04 .

The analysis of the use of engines caused by a disaster was recorded as the engine suspension at 19:17, the engine operation at 19:43, the engine suspension at 19:48, and the engine operation at 19:49.

On December 15, 199, the engine suspension at 19:31, the 19:54, and the engine operation at 19:54, was recorded in the passenger car operated by the Z outside the catum, and the income before the engine suspension was recorded in KRW 30,700.

As a result of the reading of CCTV at the early East-dong branch of the easan Bank, the Defendant was exposed to the head of the Tong at the same branch of the company from 19:51:26 to 19:52:20, and the Defendant was exposed to the head of the Tong and arranged the head of the Tong at the same branch of the company. As of December 14, 1999, the amount of KRW 937,560 was deposited in the head of the Tong.

㉳피고인의 변소에 따른 주요 운행구간의 실측거리는, 부산 부산진구 O 소재 'P' 식당에서 구 U까지의 운행거리는 10.4km(당심에 추송된 2000. 9. 18.자 수사보고, 한편 같은 달 2.자 수사보고에 의하면 실측거리가 11.15km이다)이고, 구 U에서 Y를 거쳐 부산은행 초량동지점까지의 거리는 약 2.1km(수사기록 119쪽 참조)이다.

(3) Whether the defendant's lawsuit conforms to objective records, etc.

The side distance from the 'P' restaurant located in Busan Seosan-gu to the Gu U is in excess of 0.9 km or more than the distance inferred to the defendant's office in the above paragraph (1). However, there is a somewhat different difference, it is consistent with the defendant's defense in that part of the joint winners is first unloaded and the remainder is recorded as calculated by the charge for the whole section, and the witness Q and R's statements are supported by the court below.

㉯구 U에서 Y를 거쳐 부산은행 초량동지점까지의 위 ②㉳항 기재의 거리는, 위 ①㉯, ㉰항 기재 피고인의 변소에서 추론되는 운행거리와 비교적 일치하고, 위 ②㉱항 기재와 같이 공소외 Z가 운행하는 택시의 엔진정지 시간도 이 사건 택시의 엔진정지시간과 중첩(19:31경부터 19:43경)되며, 그 때까지 위 Z 운행의 택시수입금에 관한 기록도 일치하므로, 피고인의 변소에 부합하며, 원심 증인 Z의 진술도 이를 뒷받침하고 있다.

In case of the defendant's occurrence, the engine is used as the time when the head of the Tong was arranged at the beginning point of the Busan Bank's early port entered in the above paragraph (2). However, there is a tendency to delay the time more than the standard time, which may lead to a case where the error between the standard time and the 2 to 3 minutes may occur (see the confirmation letter of AB preparation submitted on the second date of the trial court), and the change of the defendant's complaint is not contrary to the vehicle operation record. Since the engine suspension time is about one minute, it is relatively consistent with 54 seconds of the time for the head of the Tong, and the agreement deposit is made on the preceding day as stated in the above paragraph (2). Thus, the defendant's change in the purpose of the head of the Tong settlement is supported.

(d) If so, it would be difficult to see that the defendant committed the crime of this case by creshing the gap during the criminal time period of this case and then discarded the knife and returning to the taxi operation service, such as taking the knife and taking the knife, etc. In the end, the victim's statement that the defendant is the criminal of the crime of this case, which the victim's victim's criminal of this case, is due to the knife or writing, is not reliable.

(6) Sub-committee

Ultimately, the above facts charged constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the court below found the defendant guilty. The judgment of the court below is erroneous in the misunderstanding of facts and affecting the conclusion of the judgment. Thus, the argument of the defendant's appeal pointing this out is without merit.

(b)the point of unfair sentencing on the crime of paragraph 1 of the original decision;

When comprehensively examining and examining the various circumstances, such as the following: (a) the argument on unreasonable sentencing regarding the crime as stipulated in paragraph (1) of the judgment of the court below, the occurrence of the case, the background of the occurrence of the case, the age, inclination, criminal record, and the environment, etc., which are the conditions for sentencing, the sentence imposed by the court below on the crime is deemed unfair because it is too unreasonable. Therefore, the argument on

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed and it is decided again as follows.

Criminal facts

The criminal facts acknowledged by this court are changed to "1. A.," "B.," "b.," and "b., assault" in the order of 1.1," "2.," "3.," and "b., assault," respectively, and they are cited as they are, except for deletion of the criminal facts in paragraph (2), since they are the same as the original judgment.

Summary of Evidence

1. Statement in this Court by the defendant;

1. Statement of witness F in the protocol of the original trial (fourths);

1. Each statement of the witness G, H and I in the protocol of the original trial (seventh),

1. Entry of an investigation report prepared by the Prosecutor's Office AC (report on confirmation of sunset hours);

1. References to criminal records of the defendant;

1. Entry of a report on results of confirmation of previous convictions taken by the Prosecutor's Office AC;

Application of Statutes

1. Relevant legal provisions concerning criminal facts;

(a)The point of each intimidation: Article 2(2) and (1) of the Punishment of Violences, etc. Act, Article 283(1) of the Criminal Code (the selection of fines for negligence);

(b)The occupation of assault on Board: article 260, paragraph 1, of the Criminal Act (Selection of Fine);

2. Concurrent crimes:

(a) The latter part of Article 37 and Article 39(1) of the Criminal Act;

(b)Article 37 (former part), Article 38 (1) 2, and Article 50 (Aggravation of the penalty and penalty provided for in the Punishment of Violences, etc. Act of November 30, 1998) of the Criminal Act;

3. Detention in a workhouse;

Articles 70 and 69(1) of the Criminal Act

4. The inclusion of detention days prior to sentencing

Article 57 of the Criminal Act

Parts of innocence

The summary of the Defendant’s attempted robbery among the facts charged in the instant case is the same as 2. A. (1) of the above part of the reasoning. Since there is no proof of a crime, such as 2.6 of the above, the Defendant is acquitted of the above facts charged pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judge Lee Jae-in (Presiding Judge)