Whether the crime of robbery, which shows the habitual appearance of robbery, is related to the crime of habitual robbery under Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (affirmative)

In the event that a criminal who has committed habitual robbery as prescribed in Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes committed robbery in addition to the crime, was engaged in robbery for the purpose of habitually robbery, but the robbery does not reach robbery and even if it is found to be the realization of habitual robbery, the preliminary act of robbery shall not constitute only one crime of habitual robbery as prescribed in the said Act, which is incorporated into the crime of habitual robbery, and shall not constitute the crime of robbery separately from the crime of robbery

Article 5-4 (3) of the Aggravated Punishment Act

Supreme Court en banc Decision 84Do1573 Decided December 26, 1984 (Gong1985, 283) Supreme Court Decision 2002Do429 Decided April 26, 2002 (Gong2002Sang, 1312) Supreme Court Decision 2002Do5211 Decided November 26, 2002 (Gong2003Sang, 294)

Defendant

Defendant

Attorney Park Jong-soo

Seoul High Court Decision 2002No2898 delivered on January 14, 2003

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. Of the facts charged in this case against the defendant, the summary of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, in collaboration with the co-defendants of the court of first instance, is as follows: the defendant: the date and place mentioned in Paragraph (c) of Article 2-3 of the facts charged in the judgment of the court of first instance; the defendant, together with the co-defendants of the court of first instance, led him to the suppression of the victim's resistance; and the defendant, together with the co-defendants of the court of first instance; the defendant, in addition, exceeds the victim's clothes; and the co-defendants of the court of second instance, in one time after he exceeded the victim's her will and panty; and sexual intercourse suffered from the victim'

2. According to the records, the facts that a co-defendant of the court below committed rape to the above victim at the time and place specified in the above facts charged can be sufficiently recognized. However, the court below's dismissal of the defendant's appeal is difficult for the following reasons.

A. According to the records, it is revealed that there is only a statement in an investigative agency of a co-defendant of the court below, which corresponds to evidence that the defendant rapes the victim in collaboration with the co-defendant of the court below. Thus, the statement of the co-defendant of the court below cannot be used as evidence to acknowledge the above facts charged as evidence,

(1) The summary of the part of the statement of the court below that corresponds to the above facts charged is that "the defendant exceeded all clothes and left room," and the defendant went off about 1,2 minutes after the statement of the court below, and raped the victim." However, in relation to the above facts charged at the police, the victim tried to do approximately 1,2 minutes of her clothes after her completely cutting off her head and her head. It is hard to see that the victim was raped at the time of the court below's statement that "It was impossible for the defendant to know that she was rape," and that it was impossible for the victim to know that she was rape at the time of her escape, and that she was able to know that she was raped by the defendant at the time of the court below's oral statement. It is hard to see that the victim stated that she was rape, including the victim's oral statement at the time of the court below's oral statement and that she was rape."

(2) The co-defendants of the court below stated that "the defendant entered room in the room, and the victim she added his sexual organ only once into the quality of female she tried to engage in rape," and that "the victim taken her panty to the quality of female her sexual organ and taken her panty in and out of the room because she could not have sexual intercourse with her sexual organ," and that " her clearly" attempted rape, and the victim made a statement consistent with the statement of the court below concerning her act. It is difficult to view that the co-defendants of the court below did not directly rape the defendant, and that it was hard to see that she was out of the court below that she was out of the body of the victim, even though she was out of the body of the victim, it was hard to see that she was out of the body of the defendant, and that she was out of the body of the court below, and that she was out of the victim's she did not have rape.

(3) In relation to the facts charged, the co-defendants of the court below stated that "the defendant was off from the clothes of the victim and went to the ward," and that "she was raped by the defendant in the room, and the defendant went to the room," in relation to the above facts charged, he stated that "the defendant was unable to do so" in the room. When the defendant rapes the victim and goes to the room, he stated that "the defendant was able to do so", and that he did not know that he was raped by the defendant, and that he did not know that he would have been raped by the court. It is difficult to say that "the defendant was able to do so," and that he did not know that he was raped by the defendant. It is hard to say that he was rape of the defendant unless he knew that he was raped by the defendant."

B. As seen above, it is difficult to recognize the credibility of the statement of the co-defendant of the court below, which corresponds to the above facts charged against the defendant, and there is no other evidence to prove that the defendant raped with the co-defendant of the court below. Nevertheless, the court below's conviction of the above facts charged constitutes an illegal act that affected the conclusion of the judgment by erroneous recognition of the facts contrary to the rules of evidence. Thus, the ground of appeal pointing this out is with merit.

3. ex officio, according to the judgment of the court of first instance and the reasons of the judgment of the court of first instance as cited by the court of first instance, the court below recognized the defendant as guilty of the crimes listed in Articles 2-A. 2-2(a), 4-1(a) through (4), and 5-2(b) of the judgment of the court of first instance (each night night intrusion, deadly weapons, portable and joint robbery robbery, and possession of deadly weapons and joint robbery robbery), and applied Articles 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes"), Article 334(1) and (2), 333, and 342 of the Criminal Act, and Article 1-2(b) through (5) of the judgment of the court of first instance, and applied Article 343 of the Criminal Act and Article 330 of the Criminal Act to each of the above special crimes as concurrent crimes with robbery.

However, in the event that a criminal who has committed robbery as provided in Article 5-4 (3) of the Aggravated Punishment Act committed robbery in addition to the crime, committed robbery with the purpose of habitually robbery, but did not reach robbery and even if it seems that it was the realization of habitual robbery, it shall be deemed that the robbery preliminary act was incorporated into the crime of habitual robbery and constitutes only one crime of habitual robbery as provided in the above Article and does not constitute the crime of habitual robbery separately from the crime of habitual robbery (see Supreme Court en banc Decision 84Do1573, Dec. 26, 1984; 2002Do429, Apr. 26, 2002, etc.).

Therefore, the court below held that each of the above crimes committed by the defendants constitutes a crime of violation of Article 5-4 (3) of the Aggravated Punishment Act and a crime of robbery, and held that each of the above crimes is punished by concurrent crimes, it constitutes an unlawful act which affected the conclusion of the judgment by misapprehending the legal principles on the interpretation of Article 5-4 (3) of the Aggravated Punishment Act and the number of crimes.

4. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the defendant is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)