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(영문) 광주고등법원 2018.11.29 2018노360

특정범죄가중처벌등에관한법률위반(절도)

Text

All of the Prosecutor’s appeals against Defendants and Defendant D are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Each sentence sentenced by the court below against the Defendants is too unreasonable.

B. According to the evidence submitted by the prosecutor (Defendant D), the Defendant’s act of viewing the network thereby contributing to the inherent contribution to the crime, thereby co-processing each special larceny crime in A, C, and B. As such, the Defendant’s crime should be deemed to have reached a joint principal offender, not just aiding and abetting each special larceny crime in A, C, and B.

Nevertheless, the court below held that the defendant satisfied the requirements of the joint principal offender such as functional control over each special larceny.

On the ground that it is difficult to see this part of the facts charged, the court found the defendant guilty only for aiding and abetting each of the above crimes.

Therefore, this part of the judgment of the court below is erroneous by misapprehending the facts, which affected the conclusion of the judgment.

2) The lower court’s sentence against an unfair defendant in sentencing is too unhued and unreasonable.

2. The lower court’s determination on the prosecutor’s assertion of mistake of the facts was based on the following: (a) the prosecutor’s evidence submitted by the prosecutor based on the recognition of the circumstances as stated in the “not guilty portion” of the judgment; and (b) the fact that there is no reasonable doubt as to the existence of functional control over each special larceny by Defendant D, C, and B by making an essential contribution to each special larceny that Defendant D committed;

In view of the facts charged against Defendant D, the lower court acquitted Defendant D on the grounds.

Examining the various circumstances cited by the lower court in a thorough and consistent manner with the record, there is no reasonable circumstance to deem that the lower court’s determination of evidence was clearly erroneous or that the argument leading to the acknowledgement of facts is significantly unfair due to the violation of logical and empirical rules.

The prosecutor's assertion that the judgment of the court below was erroneous on the premise different from this is erroneous.