[상습장물보관·상습장물알선등피고사건][고집1973형,80]
Punishment in the case of storage in order to arrange for stolen
On September 16, 1972, at around 20:00, a request for disposal of stolen goods was made and kept until 12:00 of the following day, and if the two acts of safekeeping and good offices are in close vicinity at time and have been made by a request for disposal of stolen goods in accordance with social norms and have arranged the disposal of stolen goods, it is reasonable to treat them as a single act.
Article 362 of the Criminal Act
Defendant 1 and one other
Defendant, etc.
Seoul Criminal Court of the first instance (72 Gohap832)
Of the judgment of the court below, the part on Defendant 1 is reversed.
A defendant shall be punished by imprisonment for three years.
The number of days under detention prior to the pronouncement of the judgment below shall be included in the original sentence.
Article 1(2)(No. 5) of Seoul Enforcement Decree 2-4091 Motor Vehicle Number Plate shall be confiscated from the accused.
Of the facts charged against the defendant, the defendant shall be acquitted.
Defendant 2’s appeal is dismissed.
One hundred and fifteen days of detention days after filing an appeal against the above accused shall be included in the sentence of the original instance.
The gist of the grounds for appeal by Defendant 1 is as follows: First, the defendant was not guilty of larceny under Articles 1-1(2) and 1-4(a)(c)(d) against the defendant at the time of the original adjudication; second, the violation of the Road Transport Vehicles Act against the defendant is also illegal unless the defendant was involved in the so-called "non-indicted 1"; third, the defendant did not have any fact of keeping the stolen goods under Article 1-3(a) against the defendant at the time of the original adjudication; third, the defendant was not aware of the fact that the defendant was guilty; second, the court below erred by finding the defendant guilty of two stolen goods storage and brokerage; fourth, the defendant's act of keeping the stolen goods and brokerage against the defendant under Article 1-4(c) against the defendant; second, the court below erred by finding the defendant guilty of the facts that the defendant was habitually guilty of the charges; second, the defendant's act of keeping the stolen goods and brokerage of the stolen goods despite his request.
First, considering the first and second points of appeal by Defendant 1, when comprehensively reviewing various evidences that the court below duly adopted after the examination of evidence (in particular, the fact that the defendant led to the confession of all crimes in the court below) in light of the records, each crime can be fully recognized, and there is no error of law as pointed out in the process of fact-finding, and the third points of appeal by the defendant are recognized as separate acts and mediation, and the court below has decided that the act of arranging the next disposition is identical to that of the defendant's statement in the court below and the defendant's appeal, and the act of arranging the disposition is close to both acts in the concept of society and ultimately cannot be seen as keeping for good offices. In this case, the two acts should be considered as a habitual good brokerage crime, and the crime of storing stolen goods is not established separately, and the judgment of the court below should be reversed in this point, since the defendant's party member's argument of unfair sentencing is reversed, and the judgment of the court below is without merit.
Next, in relation to the assertion of mistake of facts that Defendant 2 had knowledge of habitual nature and stolenness, which is the first point in the grounds for appeal, the court below's determination of the punishment is reasonable, and the appeal by Defendant 2 is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act on the grounds that there are no excessive defects, and the appeal by Defendant 2 is dismissed pursuant to Article 57 of the Criminal Procedure Act on the grounds that the appeal by the court below is without merit, in full view of various evidences adopted by the court below through legitimate examination of evidence, the criminal facts of the defendant, and the facts of the defendant's previous conviction, and there are no other errors as pointed out in the court below's argument in the process of fact-finding, and then, considering the circumstances such as the defendant's age, character, environment, criminal record, criminal record, motive, means, result of the principal offense, and various circumstances after the crime, the defendant's appeal by the court below is included in the sentence of the court below on the date of detention of the defendant.
With respect to Defendant 1, the part of the judgment of the court below against the same defendant is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is decided again by a party member after pleading.
The criminal facts and the gist of evidence against the defendant who is admitted as a member of the party are as follows: at around 13:00 of the original judgment, at around 1-3 and 20:00 of the same month, at the end of the Central Market Report Center located in Seongdong-gu Seoul, Seongdong-gu, Seoul at around 16:0, the defendant was delivered upon the request of the non-indicted 1 to sell the 55,000 won lag, which he stolen from the non-indicted 1, and at around 13:00 of the following day, he requested the non-indicted 2, 3,4, etc. to sell the lag at around 14:00, and sold the 25,000 won to the non-indicted 2, 3, and 369 of the Criminal Procedure Act, and corrected the lag by receiving the lag 4,000 won under his remuneration from the lag and correcting it.
Article 32, Article 329, Article 30 of the Criminal Act; Article 1-3 of the Judgment of the court below as to larceny of Article 1-1, Article 4 of the Road Transport Vehicles Act in the judgment of the court below as to Defendant 1; Article 363 (1), Article 362 (2) and Article 362 (1) of the Act; Article 1-4 (a) (c) of the Judgment of the court below as to habitual larceny of Article 332, Article 331 of the Act; Article 2 of the Judgment of the court below as to the violation of the Road Transport Vehicles Act shall be deemed to fall under Articles 84 (3) and 78 of the Road Transport Vehicles Act; Article 1-2 of the Act shall be sentenced to imprisonment with prison labor for habitual larceny and habitual larceny of Article 362 of the said Act; Article 332 of the said Act shall be included in the term of punishment; Article 4 of the said Act shall be included in the term of imprisonment with prison labor for each of the defendants; Article 365 of the said Act shall be included in the term of punishment.
The following facts charged against the defendant of the prosecutor are examined as to the habitual storage of the defendant's defendants "on September 16, 1972, at the framework of the Central Market Report Center located in Seongdong-gu Seoul, Seongdong-gu, Seoul, at around 20:0, at the request of the non-indicted 1 to sell 5,00 won 5,00 won lag at the 14th price in the mountain lag which the Dong was stolen by the non-indicted 1 from the non-indicted 1, and even though he was aware of the fact that the defendant was a stolen object, he shall keep the defendant's lag in the alley road near the defendant's house located in Seongdong-gu, Seongdong-gu, Seoul (hereinafter omitted) by the 12:00 day following the following day."
In full view of the defendant's statement in the court below and the court of the first instance regarding the crime of habitual stolen good mediation which recognizes the above facts as a party member, the defendant received a request for disposition from the non-indicted 1 on September 16, 1972, and kept the above table expenses which he stolen from around 20:00 on September 16, 1972, from around 12:00 the next day, and arranged disposition by requesting the above defendant 2 on around 13:00 on that day. If the above facts are true, the two acts of safekeeping and good offices are close to time, and if they were kept in custody after being requested for disposition of stolen goods in terms of social concept, and arranged the disposition, they are not deemed to be different (refer to the grounds for appeal by the defendant), but it is reasonable to place the two acts comprehensively, and the crime of habitual stolen goods custody is not established separately.
Therefore, since the above facts charged do not constitute a crime, it is not guilty under Article 325 of the Criminal Procedure Act.
It is so decided as per Disposition.
Judges Kim Hong (Presiding Judge)