[2] Criteria for distinguishing between the origin and attempted crime of quasi-Robbery

[2] Similar to the fact that the crime of quasi-Robbery and the essence of robbery are taking property in the same robbery, the taking and attempted crime of quasi-Robbery shall not be determined based on the taking and attempted taking of assault and intimidation, but shall be determined based on the taking and attempted taking of larceny.

Supreme Court Decision 81Do409 Decided March 24, 1981 (Gong1981, 13856), Supreme Court Decision 85Do619 Decided May 14, 1985 (Gong1985, 876), Supreme Court Decision 90Do193 Decided April 24, 199 (Gong190, 1196)

[2] Supreme Court Decision 64Do504 decided Nov. 24, 1964 (No. 12-2, 30)

A defendant shall be punished by imprisonment for one year.

The fifteen days out of the detention days before the judgment of the court below is made shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

A. misunderstanding of facts or misunderstanding of legal principles

In order to escape arrest of the victim, it is sufficiently recognized that the defendant has committed two times the face and chest of the victim, and the defendant's assault constitutes the assault in the quasi-Robbery in light of the circumstances at that time, but the court below did not recognize the crime of quasi-Robbery because the defendant cannot be deemed to have committed the assault in the degree of suppressing the victim's resistance. The court below erred by misapprehending the legal principles of assault in the crime of quasi-Robbery.

B. Unreasonable sentencing

In light of all the circumstances, such as the defendant's act and behavior after the crime, the sentencing of the court below is unfair as it is too unfortunate.

2. Determination on the grounds for appeal

A. Although an assault, which is a constituent element of quasi-Robbery, should reach the degree of suppressing the other party’s resistance in a balance with the assault of robbery, it is sufficient to the extent that the other party’s resistance is generally and objectively possible as a means to suppress the resistance, and the intention of arrest is not required to have been devised. This should be determined depending on whether it is sufficient to suppress the other party’s attack in light of the specific circumstances in order to arrest. If an assault that leads the other party to the assault to cause harm to the body of the other party, it is difficult for ordinary persons to exclude it and arrest the offender, barring any special circumstances, and thus, such assault is generally sufficient to suppress the intent of arrest.

B. In full view of the statements made by the witness in the second trial records, the statement made by the prosecutor on the accused prepared by the prosecutor, the statement made by the assistant judicial police officer on the victim, each statement made by the victim and each statement made by the victim (1, 2 times) in the second trial records, the physically healthy university students attempted to larceny by impairing the victim's residence, which is the place of the crime of this case, at the remaining night, but the victim went away from the victim's attempt to larceny. The victim was not on the right shoulder of the defendant for discovering and arresting the victim, and the victim was not on the victim's body at the time of the arrest, and the victim was not on the victim's face at the time of the above arrest. Even if the victim was not on the victim's body, the victim was not on the victim's face at the time of the crime of this case, and the victim was not on the victim's own body, and the victim was not on the victim's face at the time of the above arrest to the extent that the victim was not on the victim's body.

C. Thus, the court below's judgment that the defendant's assault constitutes an assault in quasi-Robbery is erroneous in misunderstanding of facts or misunderstanding of legal principles, thereby adversely affecting the conclusion of the judgment, and the prosecutor's appeal claiming this error is with merit.

3. Conclusion

Therefore, without examining the remaining grounds for appeal by the prosecutor, the judgment of the court below is reversed, and it is again decided as follows.

Criminal facts

On April 21, 1998, at around 23:05, the Defendant committed assault on the victim’s face and chest by drinking one time at the victim’s right shoulder in order to escape arrest in order to arrest the Defendant, when the victim, who had taken away from the math to the math of the city of Seongbuk-gu, Seoul (detailed address omitted), was intruded into the small room of the house through open gates to steal the property, opened the math of the math, cut off the math of the math, and opened the math of the math, cut off the math of the math in the right shoulder of the Defendant in order to escape arrest of the Defendant.

Summary of Evidence

Since the judgment of the court below is the same as it is, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 342, 335, and 333 of the Criminal Act (Reasons for Recognition as Crimes of Attempted Robbery)

2. Mitigation of attempted crimes;

Articles 25(2) and 55(1)3 of the Criminal Act

3. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (Initial Crimes, Agreement)

4. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

5. Suspension of execution;

Article 62 (Reasons for Discretionary Mitigation of Criminal Act and Consideration of Gamend, etc.)

The acquittal portion

The summary of the facts charged in this case is that the defendant committed an attempted larceny and assaulted the victim and committed an attempted robbery as described in the above facts charged. As the quasi robbery crime and the essence of the same robbery are also entitled to take property in the same robbery crimes, the taking and attempted robbery shall not be determined according to the taking and attempted robbery, but shall be determined according to the taking and attempted robbery. As such, as in this case, even though intrusion upon residence at night was discovered, if the victim committed an attempted robbery with a view to evading arrest, it shall be deemed that the attempted robbery did not reach the number of the attempted robbery (Article 342 (Attempted Robbery) of the previous Criminal Act amended by Act No. 5057 of Dec. 29, 195) and thus, there may be controversy as to whether the attempted robbery was punished pursuant to Article 342 (Attempted Robbery) of the Criminal Act. However, it shall be deemed that there is a punishment for the attempted robbery as mentioned above.

Thus, the charged facts of this case shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act. However, since the charged facts of quasi-Robbery are included in the charged facts, it shall be sentenced to the charge of attempted robbery and the sentence of the charge shall not be sentenced separately.

It is so decided as per Disposition for the above reasons.

Judges Kim Tae-hwan (Presiding Judge)