[2] Relationship between the crime of robbery and the crime of robbery, and whether a new assault or intimidation is required in a case where a rape seizes property using the fact that the crime of robbery is still in a state of suppression of resistance by assault or intimidation (negative)

[3] The case affirming the court below's decision that the defendant's act resulting in handbags owned by Eul during the commission of special rape against Gap constitutes a crime of violation of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (special robbery, etc.) by comprehensively taking advantage of the defendant's act

[2] The crime of robbery is punishable by the act of using violence or intimidation by means of taking property as a means of assault or intimidation, so long as the victim took another's property through assault or intimidation, the crime of robbery is established even if the victim was unaware of the fact of taking property by force, and the victim did not necessarily have to be the owner or possessor of the stolen property. In a case where the rape takes property by using violence or intimidation for the purpose of rape, and the crime of robbery is established even if there is no new assault or intimidation for taking property by force or intimidation for the purpose of rape.

[3] The case affirming the court below's decision that the defendant's act of taking handbags owned by Eul at the scene of the crime committed during night by intrusion upon Gap's residence and threatening drones and threatening them to suppress Gap's resistance constitutes a crime of violation of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010) (special robbery, etc.) (amended by Act No. 10258, Apr. 15, 2010)

1. Determination of misconception of facts as to the crime of intrusion upon residence

The Defendant’s assertion on this part is merely an error with the fact-finding by the lower court, which is the full authority of the fact-finding court, and thus does not constitute a legitimate ground

2. Judgment on the misconception of facts and misapprehension of legal principles with respect to the crimes of violation of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (special robbery, rape, etc.)

In the event that rape causes robbery after the commission of rape and forcibly takes property of such female, a concurrent crime may be established not only for robbery but also for robbery and robbery. However, since a person who committed robbery before or after the commission of rape and continues to engage in robbery is entitled to obtain the status of robbery immediately before the commission of rape, this constitutes robbery under Article 339 of the Criminal Act (see Supreme Court Decision 8Do1240, Sept. 9, 198) and constitutes robbery under Article 339 of the Act (see Supreme Court Decision 88Do1240, Apr. 15, 2010); Article 5(2) of the former Act on the Punishment of Sexual Crimes and Protection of Victims thereof (Amended by Act No. 10258, Apr. 15, 2010); Article 5(2) of the former Act on the Protection of Victims of Sexual Crimes constitutes a special rape under Article 334(1) of the Criminal Act where a person who committed robbery continues to commit such act after the commission of robbery and other special rape under Article 297(5).

In addition, since the crime of robbery is punishable by means of taking advantage of violence and intimidation by means of taking advantage of property, so long as the victim took advantage of another's property through violence or intimidation, the crime of robbery is established even if the victim was unaware of the fact of taking advantage of another's property by force, and it does not require that the victim is the owner or possessor of the stolen property (see, e.g., Supreme Court Decisions 67Do610, Jun. 13, 1967; 79Do1735, Sept. 25, 1979); and in cases where the rape takes advantage of the fact that he/she continues to take advantage of the fact that he/she is in a state of anti-tension, after taking advantage of violence or intimidation for taking advantage of the fact that he/she is in a state of anti-tension, the crime of robbery is established even without any new assault or intimidation for taking advantage of property (see Supreme Court Decision 85Do1527, Oct. 22, 1985).

The court below is just in holding that the crime of violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims (Special Rape, etc.) is committed by taking comprehensive account of the defendant's act that brought a handbag on the victim non-indicted 2, which was in the criminal scene of rape in the judgment of the court below against the victim non-indicted 1, and it is not erroneous in the misapprehension of the legal principles as alleged

3. Determination as to the defectiveness and mental disability claim

The decision of the court below that the defendant did not have or lacks the ability to discern things at the time of committing the crime of this case is correct, and there is no violation of the rules of evidence or misapprehension of the legal principles as to mental and physical disorder as alleged in the grounds of appeal.

4. Judgment on the assertion of unfair sentencing by a public defender

The ten-year sentence sentenced to the Defendant’s imprisonment is the most severe punishment among the statutory penalties for the crime of violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (special robbery, rape, etc.). The argument in the grounds of appeal on the fact that the sentence of the lower court is too heavy since it constitutes the minimum punishment that can be sentenced by discretionary mitigation after taking a heavy weight of repeated crime under Article 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes.

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)