(영문) 인천지방법원 2015. 1. 9. 선고 2014노2031,2014노4099(병합) 판결[사기·특수절도][미간행]
Defendant 1 and one other
Defendants
The head of a Gu shall hold a trial of Phee, Park Jong-sung, Cho Jong-sung, Cho Jong-hee, Park Jong-hee (prosecution).
Attorney Lee Il-il et al.
1. Incheon District Court Decision 2013Da8621 Decided June 11, 2014 / 2. Incheon District Court Decision 2014Da3764, 4679 (merged), 5987 (Consolidated), 6895 (Consolidated) Decided November 5, 2014
Of the first and second original judgments, all parts on Defendant 1 shall be reversed.
Defendant 1 shall be punished by imprisonment for seven years.
Defendant 2’s appeal is dismissed.
1. Summary of grounds for appeal;
A. Defendant 1 (Defendant of the Supreme Court’s judgment)
1) misunderstanding of facts or misunderstanding of legal principles as to the second original judgment
The Defendant did not instruct Co-Defendant 2 of the first instance trial to commit a crime, and is merely aiding and abetting the degree of his participation (2014No. 4679). The Defendant did not have any act in color of the branch office necessary to process the establishment of a passbook or the certificate of balance deposit (2014No. 4679), or in coloring the establishment of a passbook and the withdrawal of the share capital (2014No. 5987). Since the Defendant lent money to Co-Defendant 2 of the first instance trial, it was merely aiding and abetting the degree of participation (2014No. 6895).
2) Unreasonable sentencing
Each sentence of the lower court (the first instance court: four years of imprisonment, and three years of imprisonment) shall be too unreasonable.
B. Defendant 2
The punishment of the lower court (ten months of imprisonment) is too unreasonable.
2. Judgment ex officio (the part against Defendant 1)
Prior to the judgment on the grounds for appeal by Defendant 1, the Defendant appealed ex officio prior to the judgment on the grounds for appeal by the lower court, and this court decided to hold concurrent hearings on each of the above appeals cases. Each of the offenses against the Defendant in the judgment of the lower court is in a concurrent relationship under the former part of Article 37 of the Criminal Act, and a single sentence should be sentenced within the scope of the term of punishment aggravated for concurrent offenses pursuant to Article 38(1) of the Criminal Act. In this regard, the lower judgment against the Defendant was no longer maintained.
3. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 1
A. At least two co-offenders who are jointly engaged in a crime do not legally require a certain type of punishment, but only two or more persons commit a combination of intent to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if a combination of intent is formed in order or impliedly through several persons, the conspiracy relationship is established, and even if they did not directly participate in the act of conspiracy, they are held liable for the other co-principal's act as a co-principal (see Supreme Court Decision 2000Do3483, Nov. 10, 200).
B. Examining various circumstances found by the evidence duly adopted and investigated in the second instance court in light of the legal principles as seen earlier, the Defendant conspired with accomplices in the second instance court and sufficiently recognized the fact that the Defendant committed the instant fraud and special larceny. Therefore, the Defendant’s assertion of mistake of facts or misapprehension of legal principles is without merit.
4. Determination on Defendant 2’s assertion of unreasonable sentencing
The fact that the defendant repented his mistake, that the defendant agreed with the non-indicted 1, and that the damaged vehicle was temporarily returned to the victim non-indicted 2 is a favorable condition.
However, the Defendant had already been sentenced to criminal punishment for the same kind of crime, and in particular, in Seoul High Court on September 9, 2005, repeated the instant crime with Defendant 1, who had been an accomplice at the time despite the fact that he had been sentenced to a five-year imprisonment due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), in light of the background and content leading to the instant crime, the nature of the crime is very poor, the degree of the Defendant’s participation in the crime is not easy, and other various sentencing conditions as shown in the records and arguments, such as the Defendant’s age, sex, home environment, and the circumstances before and after the crime.
5. Conclusion
Therefore, since the judgment of the court below on Defendant 1 has the above reasons for the reversal of authority, without examining the above reasons, the part on Defendant 1 among the judgment of the court of first instance and the judgment of the court of second instance under Article 364(2) of the Criminal Procedure Act are reversed, and all of the parts on Defendant 1 among the judgment of the court of first instance and the judgment of the court of second instance are again reversed, and the appeal by Defendant 2 is without merit, and it is dismissed under Article 364(4) of
The criminal facts against the defendant recognized by this court and the summary of the evidence thereof are as follows. On June 10, 2009, "B" around June 10, 2010 in the second and second criminal facts of the judgment is the same as the statement in each corresponding column of the judgment of the court below in addition to "B" around June 10, 2010. Thus, it is accepted as it is in accordance with Article 369 of the Criminal Procedure Act.
1. Article relevant to the facts constituting an offense and the selection of punishment;
Articles 347(1), 30(a), 331(2), and 331(1)(a) of each Criminal Code (a point of fraud or imprisonment with labor) of each Criminal Code
1. Aggravation for repeated crimes;
Article 35 of the Criminal Act
1. Aggravation for concurrent crimes;
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act
The victim Nonindicted 3, Nonindicted 4, and Nonindicted 1 agreed with the victim Nonindicted 2, and the victim Nonindicted 2 were temporarily returned. On the other hand, the defendant had been subject to criminal punishment for the same kind of crime. In particular, on September 9, 2005, the Seoul High Court released the defendant from the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and attempted to commit each of the instant fraud by taking advantage of the stock price (bank deposit) with Nonindicted 5 during the repeated period of repeated crime. After continuing to commit the crime, the defendant, in collusion with Defendant 2, etc., who was the accomplice prior to the above repeated crime, sold the vehicle and attached the vehicle to the victim before and after the use of the GPS function, and obtained the purchase price and stolen the vehicle by theft, and made it difficult for the defendant to do so by taking into account the fact that there were considerable changes in the age of the victim to the above crime, the defendant committed the instant special larceny and fraudulent act, and even if it was difficult for him to do so, it appears that it did not play a key role in the criminal act of money transfer.
Judges Kim Gung-do (Presiding Justice)
1) While the Defendant stated the grounds for appeal against the second judgment on the date of the fourth trial of the party trial as an unreasonable sentencing, the Defendant added misunderstanding of facts or misapprehension of legal principles to the grounds for appeal filed by the Defendant’s defense counsel on December 29, 2014, thereby making a judgment accordingly.