[가.절도,나.특수절도][공1992.6.15.(922),1771]
A. Criteria for determining the intention of unlawful acquisition in relation to the theft of use
(b) The case holding that there exists no intention to acquire unlawful profits in the act of operating a motor vehicle of the same line three times more than 2-3 hours and then holding it at the original place;
A. In a case where the property of another person is used without the consent of the possessor without permission, if the property itself is consumed to the extent that the economic value of the property is considerably high, or if the property is disposed of in other place than its original place after its use or it is occupied for a long time without its return, the intention of unlawful acquisition may be recognized by deeming that it is intended to infringe on the ownership or principal right. However, in a case where the consumption of the value of the use is insignificant to the extent that the value of the use is negligible and that the use is returned immediately after its use, it cannot be said that the intention of infringing on the ownership or principal right is not recognized
B. The case holding that it cannot be deemed that there was an intent of unlawful acquisition in light of the victim's friendly relationship with the victim, the vehicle's circumstances, etc., where the vehicle used the vehicle from the Neow Line but used the 2-3 hours to be returned, and thereafter returned to the original parked place, using the 2-3 hours-hour auxiliary heat, etc.
Article 329 of the Criminal Act
A. Supreme Court Decision 87Do1959 delivered on December 8, 1987 (Gong1988,306). Supreme Court Decision 84Do311 delivered on April 24, 1984 (Gong1984,951)
Defendant 1 and two others
Prosecutor
Suwon District Court Decision 91No1228 delivered on December 12, 1991
The appeal is dismissed.
We examine the grounds of appeal.
In cases where the property of another person is used without the consent of the possessor, if the property itself is consumed to a considerable extent of economic value or disposed of in other place than its original place after its use or it is in possession of long time without the return, the intention of unlawful acquisition may be recognized by deeming that there is an intention to infringe on the ownership or principal right. However, in cases where the consumption of the value due to the use is insignificant to the degree that the value would be disregarded and that the use is returned immediately after its use, it shall not be deemed that the intention of infringing on the ownership or principal right is not recognized (see Supreme Court Decision 87Do1959, Dec. 8, 1987).
In light of the records, the court below determined that the defendants could not be deemed to have had the intent of unlawful acquisition in light of the relationship between the defendants and the victims, the circumstance of the vehicle operation, the operating time of the vehicle, and the circumstances after the operation, etc., and it is just to determine that the defendants could not be deemed to have had the intent of unlawful acquisition in light of the relationship between the defendants and the victims, and there is no error in the misapprehension of legal principles as to the intent of unlawful acquisition in the case of larceny in the so-called theft. There is no reason to argue that there was no error in the misapprehension of legal principles as to the intention of unlawful acquisition in the case of larceny.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)