beta
(영문) 대구지방법원 2013.3.26.선고 2012고합1495 판결

특정범죄가중처벌등에관한법률위반(절도),사기

Cases

2012 Gohap 1495 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, Fraud

Defendant

A

Prosecutor

Wang-ju(s) and knife(s)

Defense Counsel

Attorney AB (Korean Office)

Imposition of Judgment

March 26, 2013

Text

Defendant shall be punished by imprisonment for a period of four years and eleven months.

One charging machine for the seized vehicle (No. 3) shall be confiscated.

The seized 26 copies (No. 1) shall be issued to R of the victim.

Reasons

Criminal facts

On October 28, 2003, the Defendant was sentenced to three years and six months of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. (thief) in the Family Branch of Daegu District Court on October 28, 2003, and was sentenced to three years and six months of imprisonment for the same crime in the resident stay support of the Daegu District Court on October 9, 2008, and completed the execution of the sentence on December 25, 201.

At around 10:00 on January 2, 2012, the Defendant: (a) entered the floor through the gate opened by the victim D, who was habitually in the Republic of Korea, from around 10:00 to around 3,363,000, the Defendant: (b) stated that “the victim was a police officer at home, but was stolen at the lower end; (c) the victim confirmed that the gold bees and reflects were stolen; (d) the victim’s net gold bees (10 dus), one, 18K (3 dus), one, and the total market price of KRW 3,363,00,00, as it was, cut and stolen; and (e) during the period from around that time, until April 25, 2012, the Defendant committed a theft on the victim’s goods, as indicated in the attached list of crimes.

2. Fraud;

A. At around 10:30 on April 16, 2012, the Defendant opened a door to be opened in the house of the victim F located in Cheongdo-gun, Cheongdo-gun, Chungcheongnam-do-gun, and made the victim “it is the support of the Eup office,” and made it a resident of the Gu. The documents should be made up of KRW 480,000 for each month pension. There is no balance in the head of the Tong, and it is false that there is a balance in the head of the Tong, and it is confirmed that there is a balance in KRW 10,00,000 for the head of the Tong, and immediately after confirming the balance in the head of the Tong, the Defendant requested the victim to withdraw KRW 7,00,000 from the head of the Tong, Cheongdo-do-gun, Cheongdo-gun, and requested the victim to withdraw KRW 7,000,000 with the head of the Tong, and then the Defendant returned KRW 7,000 from the victim’s house and the victim.

However, since the defendant was not an employee of the Eup office, he was not able to register the victim as a permanent resident, and there was no intention or ability to return the victim together with the pension even if the victim received KRW 7,00,000 from the victim.

The Defendant, as such, by deceiving the victim, received 7,000,000 won from the victim’s seat.

B. On January 18, 2012, around 13:17, 2012, the Defendant: (a) purchased the land set up in the Defendant’s house at the victim H located in G, Young-si; and (b) 3,000,000 won as the down payment, at the victim H’s house located in G. However, the Defendant received this check and made a false statement that the difference was KRW 2,00,000,000 in return.

However, the Defendant had a promissory note with 5,000,000 won, rather than 5,000,000 won check, and it was not clear whether the said promissory note is payable or not, and there was no intention or ability to purchase the land.

The Defendant, as such, by deceiving the victim, received 2,000,000 won from the victim under the pretext of the difference between down payment and the down payment.

Summary of Evidence

1. Defendant's legal statement;

1. Each police protocol of F, I, D, J, K, L, H, and S;

1. Each statement in the preparation of N, R, M, P, AC,O, M, and V;

1. Report on the occurrence of each thief incident, detailed inquiry into each report on the occurrence of each thief incident, reports on the occurrence thereof, and reports on the place and occurrence of each crime;

1. Copies of each bankbook and a detailed statement of transactions;

1. Previous records of judgment: Each criminal records, investigation reports, and copies of judgment;

1. Habituality of the judgment: Recognition of a theftproof wall in light of the following: The history of each crime, the frequency of crimes, the frequency of crimes, and the same criminal records before and after the execution of the punishment has been completed, and the crime has been committed again within the period of repeated crime:

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 5-4(6) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act, Article 347(1) of the Criminal Act (hereinafter “Aggravated Punishment, etc. of Specific Crimes”), and Article 347(1) of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act, and the proviso of Article 42 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38 subparagraph 1 subparagraph 2, and Article 50 of the Criminal Act for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the largest penalty, shall be aggravated within the scope of proviso of

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Reasons for sentencing under Article 333 (2) and (1) of the Criminal Procedure Act to deliver victims;

1. The scope of punishment by law;

From 3 years to 25 years of imprisonment;

2. Scope of recommended sentences according to the sentencing criteria;

【Determination of Punishment】

Criminal facts referred to in paragraph (1): The crimes of larceny and the crimes of the first category (general habitual and repeated larceny) of habitual larceny and the crimes of the second category (ordinary and repeated larceny): Each fraud crime, and the first category (less than KRW 100 million) of each general fraud.

【Special Escopic Persons】 Crimes of paragraph (1) of the Criminal Act: Where a person repeatedly commits the crimes at night using a special veterinary method (nescopic elements)

Criminal facts listed in paragraph (2): None

【Scope of Recommendation】

Criminal facts referred to in paragraph (1): from April to nine years (as Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes falls under Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the scope of sentence shall be limited to three to six years, respectively.

Criminal facts referred to in paragraph (2): From six months to one year and six months (basic area)

[Standard for Handling Multiple Crimes] Determination of Basic Crimes: Imprisonment with prison labor for 4 years and 6 months to 10 years (three multiple crimes, three basic crimes, 1/2 of the upper limit of the highest range of sentence among other crimes, 1/3 of the upper limit of the range of sentence, 9 years + 9 months + 6 months).

3. Determination of sentence: Imprisonment with prison labor for a period of four years and eleven months;

jury verdict and sentencing opinion

1. A verdict of guilt or innocence;

7. Opinions of guilt of only seven jurors

2. Opinions on sentencing

One juror: Imprisonment with prison labor for 6 years;

Four jurors: Imprisonment with prison labor for 5 years;

One juror: Imprisonment with prison labor for a term of four years and six months;

One juror: Imprisonment with prison labor for 4 years

Judges

The presiding judge, judge and Dong judge

Judges Gin-Name Association

Judges Lee Jong-soo