[2] The standard for determining whether the act of assaulting and threatening a minor without any temporary relocation by intrusion upon the minor's and his/her parents' residence constitutes a crime of kidnapping the minor under Article 287 of the Criminal Code

[3] The case holding that the crime of kidnapping a minor under Article 287 of the Criminal Code is not established in a case where protection relation with a parent was temporarily infringed or excluded temporarily in the course of committing robbery by intrusion upon a minor's residence where he/she is mixed with the minor

[2] If a minor intrudes on a mixed residence, detained him/her, and thereby prevents his/her parent's access by assault or threat, or if he/she forced his/her parent to leave his/her residence and forms an independent living relationship, it is clear that he/she constitutes a crime of kidnapping a minor under Article 287 of the Criminal Act even though he/she did not move his/her residence, it is difficult to recognize the minor's relation of abduction as long as he/she does not fall under the crime of kidnapping a minor under Article 287 of the Criminal Act even though he/she did not move his/her residence, or arrests, confines, confines, or assaults, or threatens, threatens, or threatens the minor's parents with his/her parents as if he/she would endanger the minor's body, even though his/her intention was practically infringed and excluded from the existing living relationship and protection relationship, it is difficult to fully recognize the minor's relation of abduction, unless there is any special reason to the contrary.

[3] The case holding that the crime of kidnapping a minor under Article 287 of the Criminal Code is not established on the ground that, even if the protection relationship with the minor was temporarily infringed or excluded by assault and intimidation against the minor and his/her parents during the course of committing robbery, it cannot be deemed that the minor was completely relieved from the existing living relationship or a new living relationship was formed, and the criminal's intent was not the escape from the above living relationship, but merely was at the suppression of resistance against the coercion of money and valuables.

1. Article 5-2 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment of Kidnapping and Inducement”) provides that a person who commits a crime under Article 287 (Kidnapping and Inducement of Minors) of the Criminal Act shall be punished by imprisonment for life or for not less than 10 years when he acquires or demands the benefit of property or property by taking advantage of the fear of the parents of the kidnapped or induced minor, or any other person who threatens to ensure the safety of the minor. The act of kidnapping as provided in Article 287 of the Criminal Act refers to the act of taking the minor away from his free living relation or protection relation against his will and moving the minor under the control of the offender or third party (see Supreme Court Decision 91Do184 delivered on August 13, 191, etc.).

Of course, this shall be deemed to include cases where a minor is transferred at a place as well as cases where the minor is separated from the existing free living relationship or the protection relationship with his/her parents without a temporary transfer and is placed under the control of the criminal or a third party. However, in cases where a crime of assault or intimidation is committed without a premise of a temporary transfer from a place-centered dwelling place of daily life of the minor and his/her guardian, it cannot be deemed that the crime of abduction by the minor under Article 287 of the Criminal Act is established in all cases where the protection relationship between the minor and his/her parents is restricted or deprived of without a premise of a temporary transfer, and most of all, in cases where the minor does not intend to leave from the existing living relationship and protection relationship, it is difficult to recognize the commencement of the crime.

Therefore, for example, if a minor intrudes on a mixed residence, detained him/her, and thereby prevents his/her parent's access by assault or threat, or if he/she forced his/her parent to leave his/her residence and form an independent living relationship, it shall be clear that he/she constitutes a crime of abduction by a minor under Article 287 of the Criminal Act even though he/she did not move at the place. However, if he/she arrests or confines a minor living in the mixed residence, or arrests, confiness, confines, or threatens or threatens a minor and his/her parents together in the course of committing robbery, such as in cases where he/she temporarily intrudes on his/her residence to threaten the minor's body and threaten him/her to threaten him/her, even though his/her protection relationship with his/her parents was practically infringed and excluded, it is difficult to recognize that he/she/it was not a crime of abduction with the minor, but a crime of abduction with a view to force the minor, but it is difficult to fully recognize that he/she was in the existing residence relationship with the minor, without any special circumstances.

2. According to the evidence duly examined and adopted by the court below, the defendant, at around 14:30 on the day of the crime, opened the entrance door of the apartment, discovered the victim's Nonindicted Party into the house, intruded the victim's knife onto the house following the knife knife by leaving the house, and took the house, and took the above victim's knife (criminal facts of this case No. 3). Furthermore, the victim's cash is not discovered, with his parent's mind to acquire cash from his parents, knife the above victim's home with his parent's knife and knife the victim's knife at around 19:0, the victim's mother entered the above apartment house, and knife the above victim's knife at the entrance of the above victim's entrance outside the police station, and then he can see it out of the police station's entrance by informing the victim's 10th of escape.

In accordance with the above facts, it is reasonable to view that the defendant's intention in committing the crime of paragraph (4) of the crime of the court below was to force the victim's mother to take money and valuables by threatening the victim's body as if the victim's body would be harmed, rather than that the victim's mother, who is a person with parental authority, to leave the above place of residence or to build an independent living relationship by emphasizing the protection relationship at the above place of residence, and that the mother of the victim who observed the scene immediately left the above place of residence was a result contrary to his intention in light of the defendant's criminal activity plan.

In addition, in light of the fact that the time interval between the police officer who was dispatched immediately after receiving the victim's report from the victim's mother and the time interval remains too far until the police officer's suppression, it is difficult to evaluate the victim's apartment building to completely leave from the existing living relationship which is based on the location or to have a new living relationship formed.

Therefore, barring special circumstances, barring special circumstances, the Defendant’s crime under paragraph (4) of the judgment of the court below as stated in Article 336 of the Criminal Act is set aside, and cannot be set under Article 5-2(2)1 of the Aggravated Punishment Act and Article 287 of the Criminal Act. However, the court below recognized the charge of violating the Aggravated Punishment Act solely on the ground that it does not require a temporary transfer in the establishment of the crime of kidnapping a minor under Article 287 of the Criminal Act. In so doing, the court below erred by misapprehending the legal principles on the elements for establishing the crime of kidnapping a minor.

3. If so, the part of the judgment of the court below as to Paragraph 4 of Article 4 of the judgment of the court below should be reversed, and since this part is concurrent crimes with the remaining part of Article 37 of the Criminal Act, one punishment shall be sentenced. Thus, the judgment

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)