Violation of the Road Traffic Act

2. Defendant shall be punished by a fine of KRW 3,000,000.

3. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

4. An order to make the provisional payment of the amount equivalent to the above fine;

A. Legal principles (a thief)

Although the defendant used the victim's Obaba in lump sum and did not intend to illegally obtain it, the court below accepted this part of the facts charged and found the defendant guilty. The judgment of the court below is erroneous in the misapprehension of legal principles as to the intention of unlawful acquisition, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (one month of imprisonment and fine of 300,000 won) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Summary of this part of the facts charged

At around 12:30 on July 16, 2013, the Defendant discovered that the E large CT100 Orala (hereinafter “the instant Orala”), the market price of which is equivalent to KRW 500,000 owned by the victim D, was parked in the front line of the following cities: (a) and (b) drive the CT10 Orala (hereinafter “the instant Orala”) with the key attached thereto, and used the gap where the surveillance was neglected.

B. Determination

1) In cases where the property of another person is used without the consent of the possessor without the consent of the possessor, if the use of the property itself is consumed to the extent that the economic value of the property itself is considerably high, or if the property is dumped in another place other than its original place after its use or it is in possession of the property for a long time without its return, the intention of unlawful acquisition may be recognized by deeming that the use is intended to infringe on the ownership or the principal right. However, if the consumption of the value due to the use is minor and is the same as the return immediately after its use, it shall not be deemed that the intention of infringing on the ownership or principal right is not sufficient (see Supreme Court Decision 92Do118 delivered on April 24, 1992).

2) Determination

First of all, we examine whether the defendant had the intention to illegally obtain the Oralone of the instant case, as evidence corresponding thereto, include the statement made by the defendant in the court of original instance, the statement made by the defendant in the interrogation protocol of the accused prepared by the judicial police assistant, and the investigation report prepared by the judicial police officer (as to the photographing of damaged articles).

Among these, the statement made by the defendant in the court of the court below was recognized by all the facts charged of this case (the trial record 20 pages), and the following circumstances acknowledged by the records of this case, namely, ① the defendant was driving the Datob in the court of the court at the time of the crime of this case as an intention to temporarily use the Datob in this case, and there was no intention to obtain unlawful Gutobb in this case. ② The defendant asserted that the Dotob in the court of the court below was prevented from committing the crime of this case (the trial record 8,18,20 pages), ② the defendant was argued to the effect that he was trying to go to go to go to the Datob in this case (the trial record 8,18,20 pages). ③ As examined below, it is difficult to view that the defendant used the Datob in this case and had the victim to go to return the Datob in this case.

Next, the statement of the suspect interrogation protocol of the defendant prepared by the assistant judicial police officer is not sufficient in light of the contents of the defendant's answer to the question whether the defendant had been able to continue to sit on the Oba of this case (in the face of 24) and the circumstances mentioned above and the defendant's answer to the purport that the assistant judicial police officer in charge of investigation in the court of the first instance asked him to ask for a trial for non-detained confinement, and the defendant's response to the above mentioned above in his own self-defensive court. Thus, the above statement of the defendant is insufficient credibility.

In addition, the statement of investigation report prepared by a judicial police officer (as to the photographing, etc. of damaged articles) is the content that the Austria in this case was discovered after the filing of number plates, glass windings, boods, boods, etc. from the defendant's residence at the defendant's dwelling (as to investigation records 15 pages), and it has consistently changed to the purport that the defendant removed the above number plates, glass winds, boods, and boods, etc. for the purpose of making the bood so far from the investigation agency to the court of the trial at the court of the trial at the case at the same time, and there is no other circumstance to suspect the change of the defendant (as to investigation records, the defendant's statement at the court at the trial at the trial at the court at the trial at the trial at the court at the trial at the

Therefore, the statement made by the defendant in the court of the court, the statement made by the assistant judicial police officer of the suspect examination of the defendant, and the statement of the investigation report prepared by the judicial police officer (as to the photographing of damaged articles), cannot be deemed to have the defendant's intent to obtain illegal exploitation of the error of the case, and there is no other sufficient evidence to support it.

Rather, the following circumstances acknowledged by the record of this case, i.e., (1) the defendant stated that he was frighting from the investigative agency, the court below and the court of first instance, and that he was frighting to get a bridge. (2) The victim was frighting to live in the Dongdong, such as the defendant's funeral, and the defendant was aware of the usual victim. (3) The victim was frighting to get a driver's license of this case, and the victim was working in the vicinity of the case where he was frighting to get a bicycle (the defendant's statement at the court of first instance, on the 7.62 pages). If the victim or neighboring residents were frighting to have a bicycle driving and frighting from the defendant's frighting to the point of view that he was frighting, and the defendant was frighting to get a bicycle at the place where fright was parked, and the defendant was frighting to the latter part of this case.

Therefore, this part of the facts charged constitutes a case where there is no proof that the defendant had an intention to illegally obtain the Oral Sea in this case, and thus, a not-guilty verdict should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. Therefore, the judgment below convicting this part of the facts charged is erroneous in the misapprehension of legal principles as to intent to illegally obtain and thereby affecting the conclusion of judgment.

3. Conclusion

Thus, the defendant's appeal is reasonable, and the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and the defendant's appeal is again decided as follows.

Criminal facts

1. Illegal use of motorcycles;

On July 16, 2013, around 12:30, the Defendant discovered that the Ega CT100 Ora, the market price of the victim D owned by the Defendant, which is equivalent to KRW 500,00,00, 12:30, is parked at the front of the following city, and used the cres where surveillance is neglected.

2. Violation of the Road Traffic Act;

On July 16, 2013, at around 12:30 on July 16, 2013, the Defendant driven the above 2km from the front side of the Defendant’s house located in F in the Hasan City to the front side of the house in the Hasan City without a motorcycle driver’s license.

Summary of Evidence

1. Statement made by the defendant at the court of the trial;

1. Entry in the register of driver's licenses;

Application of Statutes

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

Article 331-2 of the Criminal Act, Article 154 Subparag. 2 and Article 43 of the Road Traffic Act (the point of driving without a license, the choice of fines)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act committed the crime of this case when the defendant had been punished several times for the same crime, but he also committed the crime of this case during the repeated crime period due to larceny. Meanwhile, the crime of this case is determined by taking into account the various circumstances, such as the defendant's age, character and conduct, environment, circumstances, and circumstances before and after the crime, when the defendant gets a bicycle and got a witness on the bridge due to brain male aftermathing, there are circumstances to take into account the situation as being used as a temporary use without the victim's driver's license without the victim's consent. The defendant agreed with the victim and recognized the crime of this case, thereby seriously against his mistake. The victim wanted to be a defendant's wife, and other various circumstances, such as the defendant's age, character and behavior, circumstances, and circumstances before and after the crime, etc.

Part of innocence (the thief)

The summary of the larceny among the facts charged in the instant case is the same as that of paragraph (1) of Article 2, and this constitutes a case where there is no proof of criminal facts as stated in paragraph (2) of Article 2, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, among the facts charged in the instant case, the charge of larceny includes the facts charged of illegal use of a motorcycle, and even if the Defendant recognizes the crime of illegal use of a motorcycle against the Defendant, it is not likely to have any substantial disadvantage in exercising the Defendant’s right of defense in light of the progress of the instant trial, and thus, the Defendant was convicted of the crime of illegal use of a motorcycle ex officio without changing the indictment

Judges Kim Jae-sung

Judges Kim Gin-han