특수강도등
The judgment of the first instance shall be reversed.
A defendant shall be punished by imprisonment for a term of two years and a fine of five thousand won or more.
The above fine shall be imposed on the defendant.
1. Summary of grounds for appeal;
A. Regarding the charge of attempted quasi-special robbery among the facts charged in the instant case, the crime of quasi-Robbery shall be deemed as the crime of assault and intimidation committed for the purpose of resisting property recovery, etc. Therefore, whether the crime of quasi-Robbery was committed shall be determined based on the completion of assault and intimidation, i.e., the constituent act., the crime of quasi-Robbery. However, the first instance court erred by misapprehending the legal principles by acquitted the Defendants of quasi-special robbery on the basis of whether the crime of robbery was committed, thereby affecting the conclusion of the judgment.
B. The first sentence of unfair sentencing (two years of imprisonment (three years of suspension of execution of imprisonment), five million won of fine, and 80 hours of community service order) of the first sentence of unfair sentencing is too unjustifiable and unfair.
2. Determination:
A. As to the assertion of misapprehension of the legal principles, Article 335 of the Criminal Act, when a thief commits assault or intimidation in order to resist the recovery of stolen property, to escape arrest or to destroy a trace of the crime, the purport of punishment according to the precedent of robbery is that there is a difference before and after the order of time between the taking of property, which is the constituent element of robbery and quasi-Robbery, and the assault and intimidation, which is the constituent element of robbery, and that substantial illegality is the same. Considering the legislative intent of the quasi-Robbery and the balance between the crime of robbery and the crime of robbery, the issue of whether the crime of quasi-Robbery is the constituent element of robbery should be determined
(See Supreme Court en banc Decision 2004Do5074 Decided November 18, 2004). According to the above legal principle, the first instance court was just to determine that the Defendant attempted to steals the victim’s property and assaulted the victim to evade arrest, and thus, did not err in the misapprehension of legal principle as alleged by the prosecutor.
Therefore, this part of the prosecutor's argument is without merit.
B. The Defendant’s determination on the assertion of unfair sentencing is on six occasions in a short term (six months).