[특정범죄가중처벌등에관한법률위반(강도)·강도강간·강도상해][미간행]
[1] The name of the crime in the case where the robbery did not reach the taking of property, and has sexual intercourse with the victim who was unable to resist in the job, and whether the attempted robbery, which is part of the action, constitutes a separate crime (negative)
[2] The scope of application of the provisions on aggravated punishment for habitual crimes such as robbery under Article 5-4 (3) of the former Act on the Aggravated Punishment, etc. of Specific Crimes
[1] Articles 37, 40, 33, 37, 339, and 342 of the Criminal Act / [2] Article 5-4(3) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)
[1] Supreme Court Decision 88Do820 delivered on June 28, 198 (Gong1988, 1169)
Defendant
Defendant and Prosecutor
Attorney Tae-ho
Gwangju High Court Decision 2009No376 decided January 5, 2010
All appeals are dismissed.
The grounds of appeal are examined.
1. As to the Defendant’s ground of appeal
In light of the records, the court below is justified in finding the defendant's confession statement at the prosecutor's office as evidence and finding the defendant guilty of robbery, injury, and robbery among the facts charged in this case by taking account of the statements and the adopted evidences of the court of first instance cited by the court below. There is no error of law by misunderstanding the legal principles as to the voluntariness of confession or by misunderstanding of a serious fact, contrary to
2. As to the Prosecutor’s Grounds of Appeal
In the event that robbery has been injured by the victim while the robbery did not reach the taking of property but has sexual intercourse with the victim who was unable to resist in the job, only the crime of robbery and robbery are established (Supreme Court Decision 88Do820 delivered on June 28, 198). The act of attempted robbery, part of such act, which is part of the act of the commission, does not constitute separate crimes. Furthermore, as long as Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides for aggravated punishment only for robbery, special robbery, hostage robbery, and marine robbery, the crime of robbery and robbery, which are not applicable to such crimes, shall not be subject to aggravated punishment, and the above crime of attempted robbery shall not be subject to aggravated punishment on the ground that the crime of robbery and robbery are guilty, and only some of the above crimes of attempted robbery, which are punished for a separate independent crime, are removed, and the above provisions concerning aggravated punishment shall not be applied separately.
In the same purport, the court below's decision that the attempted robbery of this case is not guilty of the violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Robbery) among the facts charged of this case on the ground that the attempted robbery of this case does not constitute a separate crime by absorbing the crime of robbery, is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the relation
3. Conclusion
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Young-chul (Presiding Justice)