[특정범죄가중처벌등에관한법률위반,강도상해,보호감호(인정된죄명 : 강도상해)][공1986.1.1.(767),92]
Whether the crime of robbery constitutes an assault in the crime of robbery in case where a thief sustained bodily injury by breaking the victim's face with his flaps with a view to escaping from arrest.
A thief who, for the purpose of evading arrest, experienced an injury by drinking his face of the victim who flapsing his flaps and destroying his flaps in excess of the flaps shall be deemed to be a means to suppress the victim's resistance and to the extent generally and objectively possible. Thus, the assault as referred to in the crime of robbery constitutes an assault.
Articles 335 and 337 of the Criminal Act
Supreme Court Decision 81Do409 Delivered on March 24, 1981
Defendant 1 and one other
Defendant (1) and Prosecutor (Defendant 2)
Attorney Park Jong-young (Attorney Park Jong-young et al., Counsel for defendant 1)
Seoul High Court Decision 85No1552,85No200 Decided August 9, 1985
The prosecutor's appeal and Defendant 1's appeal are all dismissed.
The thirty days of detention prior to the rendering of a judgment shall be included in the original sentence against Defendant 1.
We examine the grounds of appeal.
1. As to the Prosecutor’s Grounds of Appeal
In light of the records, the first instance court's judgment maintained by the court below was a contingent crime committed by the defendant 2 who committed a simple impulse, the period until the crime of this case was committed after the execution of the last sentence was completed, and even though the period is not less than 4 months, the circumstances after the crime were committed with a certain occupation, the character and conduct of the respondent after the crime, family environment, etc. are recognized as stated in the judgment, and the risk of re-offending is not recognized in light of these circumstances, it is acceptable to accept the judgment of the court of first instance, and it is not reasonable to see the legal principles as to the risk of re-offending, such as the theory of lawsuit.
2. As to Defendant 1 and his defense counsel’s grounds of appeal
According to the trial evidence of the first instance court cited by the court below, it can be sufficiently recognized that Defendant 1's crime was committed, and there is no error of misconception of the fact by misunderstanding the facts by misunderstanding it. Moreover, Defendant 2, an accomplice, who saw Defendant 2 as an accomplice, scaming five million won in cash to be sealed in the newspaper, and scaming the victim's face to be scam for the purpose of evading arrest, and scaming the victim's face to be scam for 10 days, so that the victim's face to be scambling in the mouth, which requires treatment for 10 days, can be seen as a means to suppress the victim's resistance, which can be seen as an objective point in general, and therefore, the assault in the robbery crime constitutes violence as referred to in the robbery crime. As such, Defendant 1 was also an act and result that could have sufficiently predicted Defendant 2 who conspired to commit the larceny, and even if Defendant 1 did not directly participate in the robbery, Defendant 1 cannot be exempted from the robbery.
In the same purport, the judgment of the court below which considers Defendant 1's so-called as a co-principal under Articles 337 and 335 of the Criminal Act is just, and there is no misapprehension of legal principles as to robbery, injury, and co-principal. Therefore, all arguments are groundless.
3. Therefore, all appeals are dismissed, and part of the detention days prior to the pronouncement of judgment is included in the principal sentence against Defendant 1. It is so decided as per Disposition by the assent of all participating judges.
Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju