[2] Whether the appellate court violated Article 364 (4) of the Criminal Procedure Act in a case where the appellate court did not order the dismissal of an appeal only on the grounds that the appeal is groundless (affirmative)

[2] Article 364(4) of the Criminal Procedure Act provides that an appellate court shall dismiss an appeal by judgment in a case where the appellate court recognizes that there is no ground for appeal. Thus, the appellate court has violated Article 364(4) of the Criminal Procedure Act, even though the appellate court rendered a judgment of not guilty in the first instance as to the part concerning robbery reserve in the facts charged and appealed by the prosecutor, and the court below determined that the prosecutor’s appeal is groundless in its reasoning, but did not dismiss an

A. According to the records, the defendant continued to commit a crime that habitually stealsd houses are parked in a parking lot or a road and steals of objects such as pictures. According to the records, even if the defendant was in possession of mountain knife knife, etc. at the time of carrying a house, he cannot be deemed to have proved to the extent that there was no reasonable doubt that there was a purpose of taking money and valuables from others. Thus, the judgment of the court of first instance which upheld the judgment of the same purport is correct, and there is no violation of the rules of evidence as otherwise alleged in the grounds of appeal.

B. Article 343 of the Criminal Act provides that “A person who prepares or conspires for the purpose of robbery shall be punished by imprisonment with prison labor for not more than seven years.” Considering the fact that the statutory punishment is considerably heavy, such as where the statutory punishment exceeds the statutory punishment for simple larceny, and that the preparation and conspiracy is subject to exceptionally punishment only when there are special provisions in the law (Article 28 of the Criminal Act), the case recognized as a crime of robbery and conspiracy is desirable to be determined by the above statutory punishment as an act showing a considerable degree of illegality.

However, Article 335 of the Criminal Act on the crime of robbery provides that "a thief who uses violence or intimidation with intent to resist recovery of stolen property, to escape arrest or to destroy a trace of the crime, shall be governed by the preceding two Articles." It does not expressly stipulate that quasi-Robbery shall be treated as robbery at all times. Even though it has the purpose of quasi-Robbery, it is extremely exceptional and limited in that it is based on the premise of the discovery of the crime of larceny, which is a extreme situation not wanting to be thief, which is a larceny. The Criminal Act does not punish the larceny carrying a lethal weapon as a special larceny (Article 331(2) of the Criminal Act) and does not provide a punishment provision on the preliminary act. If it is deemed that the preparation of special larceny can be punished as robbery even if it has a quasi-Robbery, it does not constitute a separate punishment provision on robbery from robbery, and it does not constitute a separate punishment provision on robbery under Article 7 of the Criminal Act.

According to the records, it is difficult to conclude that the defendant prepared to use the knives for the purpose of taking things by force from others when he/she was found to have a kives for the purpose of robbery, and as long as it is recognized as the purpose of robbery by the defendant, it cannot be deemed that the defendant had a purpose of robbery. Thus, the criminal liability for the crime of robbery cannot be acknowledged.

In the same purport, the decision of the court below that affirmed the judgment of the court of first instance that acquitted the charge of robbery as it is is proper, and there is no error of law such as misunderstanding of legal principles as to the robbery preliminary charge as otherwise alleged in the ground of

2. Ex officio determination

Article 364(4) of the Criminal Procedure Act provides that an appellate court shall dismiss an appeal by judgment in a case where the appellate court acknowledges that there is no ground for appeal. According to the records, the first instance court rendered a verdict of innocence as to the part concerning the crime of robbery among the facts charged in the instant case against the Defendant, and the prosecutor appealeded by the prosecutor. The lower court determined that the prosecutor’s appeal as to the grounds of the judgment is groundless, but it can be known that the appellate court did not render a judgment of dismissal in its disposition. Thus, the lower court erred in violation of Article 364(4) of the Criminal Procedure Act (see Supreme Court Decision 200Do2049, Apr.

Therefore, among the judgment below, the part of the crime of robbery in the judgment below is not exempt from reversal in this respect, and this part of the case is deemed sufficient to be judged by the records of trial and the evidence examined up to the court below. Thus, this court's judgment is to be rendered directly in accordance with Article 396

The gist of the prosecutor's appeal as to the part of the preliminary offense of robbery is that there is an error in the rules of evidence in the judgment of the court of first instance, which judged that the defendant's purpose of taking money and valuables is insufficient, or that the robbery is not included in the strength of the preliminary offense of robbery, and that there is an error in the misapprehension of legal principles as to the violation of the rules of evidence and the robbery preliminary offense. However, as seen in the above grounds of appeal, the above judgment of the court of first instance

3. Therefore, the part of the judgment of the court below regarding the crime of robbery is reversed, and the prosecutor's appeal on this part is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)