[강도살인(인정된죄명:살인)·사체유기][공2010하,2049]
[1] Whether the crime of robbery is established in a case where a person kills a creditor with intent to evade his/her debt, but is merely temporarily exempted from the creditor's position (negative)
[2] The case affirming the judgment below which acquitted Defendant A and B of the facts charged of robbery on the ground that, in case where Defendant A and B conspired to murdered Plaintiff C with intent to evade the debt, not only clear existence of the debt owed by Byung, but also there was securing a method to verify the existence of the debt owed by Byung and his heir, the existence of the debt owed by Byung was secured
[1] To establish robbery, first of all, the establishment of robbery must be established. To establish robbery, there must be an intent of unlawful acquisition (or unlawful acquisition) in order to obtain the crime of robbery. In order to recognize the so-called "acquisition of property benefits" under the latter part of Article 333 of the Criminal Act, property benefits should have been actually transferred to a criminal or a third party at a disadvantage against the victim. In addition, in a case where the existence of an obligation is apparent and the existence of an obligee exists and the method of confirming the existence of a claim is secured by the heir, even if an obligee is murdered with the intent to evade the obligation, it is temporarily exempted from the obligee's trend, and it is difficult to view that the control of property benefits has been transferred from the obligee to the offender, and in such a case, the crime of robbery cannot be established.
[2] The case affirming the judgment below which acquitted the defendant Gap and Eul on the facts charged of robbery on the ground that, in case where Gap et al. conspired to murder Eul with intent to evade his debt, the existence of the debt to Byung is obvious, and since Byung's heir exists and the method of confirming the existence of the debt to his heir is secured, it is merely a rejection of the creditor's rank and it cannot be deemed that the control of property profits was transferred from the creditor's side to Gap, and that the control of property profits was not yet transferred from the creditor'
[1] Articles 33 and 338 of the Criminal Act / [2] Articles 30, 250(1), 333, and 338 of the Criminal Act
[1] Supreme Court Decision 99Do242 Decided March 9, 199 (Gong1999Sang, 707) Supreme Court Decision 2004Do1098 Decided June 24, 2004 (Gong2004Ha, 1274) Supreme Court Decision 2005Do1947 Decided June 23, 2005, Supreme Court Decision 2010Do478 Decided June 24, 2010
Defendant 1 and one other
Defendants and Prosecutor
Attorneys Hong-gi et al.
Seoul High Court Decision 2009No3306 decided May 28, 2010
All appeals are dismissed.
We examine the grounds of appeal.
1. As to the Defendants’ grounds of appeal
In light of the records, the court below, after compiling the adopted evidence, found facts as stated in its decision, and found the defendants guilty of committing the crime that the defendants conspired to kill the victim and abandon the body of the victim on the grounds as stated in its decision, is justified, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal. The grounds of appeal are without merit.
In addition, considering various circumstances that are conditions for sentencing, such as Defendant 1’s age, character and conduct, environment, family relationship, motive, means and progress of the crime, and circumstances after the crime, it cannot be deemed that the lower court’s sentence of life imprisonment is extremely unfair. Thus, the allegation in the grounds of appeal on this point is without merit.
2. As to the Prosecutor’s Grounds of Appeal
In order to establish the crime of robbery, first of all, the establishment of robbery must be established. To establish robbery, the intent of unlawful acquisition (or unlawful acquisition) must be established. In order to recognize the so-called "acquisition of profit on property," which is the requirement for the establishment of the so-called forced acquisition under the latter part of Article 333 of the Criminal Act, property gains should have been actually transferred to a criminal or a third party at a disadvantage against the victim. In addition, in cases where the existence of an obligation is apparent and a creditor exists and the method of confirming the existence of a claim is secured by his/her heir, it is merely temporary exemption from the creditor even if he/she murders the creditor with the intent to evade the obligation, and it is difficult to view that the control of profit on property has been transferred from the creditor to the offender, and in such cases, the crime of robbery cannot be established (see Supreme Court Decisions 2004Do1098, Jun. 24, 2004; 2005Do1947, Jun. 23, 2005).
The court below found the Defendants not guilty of this part of the charges on this part, on the grounds that, since the existence of Defendant 1’s obligation against the victim is clear and the existence of the victim’s obligation exists and the method of confirming the existence of the claim is secured by his heir, even though the Defendants murdered the victim, the obligee, due to the intent to evade his/her obligation, it is merely a temporary exemption from the obligee’s position due to the instant crime, and it cannot be deemed that the control of property profits was transferred from the obligee in the future, and thus, the robbery cannot be established.
In light of the above legal principles and records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the establishment of robbery, as otherwise alleged in the ground of appeal.
3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Sung-tae (Presiding Justice)