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(영문) 부산고등법원 (창원) 2016.11.23 2016노339

강도상해

Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The punishment sentenced by the court below against the defendant (one year of imprisonment) is too unreasonable.

B. A prosecutor 1) misunderstanding of facts (the act of injury by robbery) shall be determined on the basis of the time of assault, not on the transfer of assault, and since the defendant explicitly expressed his intent to evade taxi expenses by referring to “Is no money,” while assaulting the victim, and the victim escaped on the roadside as it is, the defendant had the intention to evade taxi expenses. As such, the defendant had the intention to evade the taxi expenses. Therefore, the judgment of the court below which acquitted the defendant of the charge of injury by robbery in this case, was erroneous in the misapprehension of facts, thereby affecting the conclusion of the judgment. 2) The sentence imposed by the court below on the defendant is unreasonable because it is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake of facts

A. In order to establish the crime of robbery by robbery, first of all, the establishment of robbery must be established; in order to establish robbery, the intent of unlawful acquisition (or unlawful acquisition) is required; and in order to recognize the so-called "acquisition of property profits", which is the requirement for the establishment of the so-called crime of forced acquisition under the latter part of Article 333 of the Criminal Act, a situation should be established to deem that property gains have actually been transferred to a criminal or a third party, in fact,

(see, e.g., Supreme Court Decisions 2010Do7405, Sept. 30, 2010; 2004Do1098, Jun. 24, 2004). In addition, the victim’s assault and assault against the victim to temporarily be exempted from creditor’s rank, beyond the extent that the victim temporarily escaped from creditor’s rank, and was de facto not subject to creditor’s rank.

It can be said that the creditor violated the rule of property interest and transferred the profit to the criminal only when the creditor created a situation in which the creditor's salary is significantly difficult.

B. The judgment of the court below is legitimate.