방실침입등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, for a period of two years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. Fact-finding (the embezzlement of possessory stolen) that the defendant acquired a wall that has been lost by the victim, or that the defendant had been in custody as the intention to return, and there was no intention to acquire illegal property against the defendant.
Nevertheless, the court below found the defendant guilty of this part of the facts charged, and the court below erred by misunderstanding the facts and thereby affecting the conclusion of the judgment.
B. The sentence imposed by the lower court on the Defendant (six months of imprisonment) is too unreasonable.
2. Determination
A. The lower court acknowledged the assertion of mistake of facts based on the evidence duly admitted and investigated by the lower court. In other words, ① the time when the victim C lost the wall, which was around 03:0 on July 2012, 201, should be deemed as the first patrol officer on July 2012, the day when the Defendant acquired the wall, and ② the person who acquired another person’s lost material was immediately returned it to the lost person, the owner, and other persons who have the right to claim the recovery of the article, or submitted it to the police station (Article 1(1) of the Lost Articles Act). However, it is reasonable to view that the Defendant had no intention to obtain it by comprehensively taking into account the following circumstances: (i) the time when the victim C lost the wall by committing the instant intrusion; and (iii) the Defendant had no intention to obtain it by submitting it to the police station.
In the same purport, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and it cannot be said that there was any error affecting the conclusion of the judgment by misunderstanding the facts alleged by the defendant and his defense counsel. Thus, this part of the defendant and his defense counsel's assertion