(영문) 수원지방법원 2019.11.29. 선고 2019노3311 판결

The court below found the defendant guilty of the charge of acquiring stolen goods and sentenced the defendant to 8 months of imprisonment and 2 years of suspended execution.

(b) The judgment before remand;

On the ground of mistake of facts and unreasonable sentencing, the defendant appealed on the ground of unfair sentencing.

However, the prosecutor kept the facts charged for the acquisition of stolen property in the trial before remanding the case and applied for changes in the indictment to add each of Articles 364 and 362(1) of the Criminal Act to the name of the crime. The prosecutor accepted the case before remanding the case.

The first instance court held that the Defendant was not guilty of the primary facts charged on the ground that the evidence submitted by the prosecutor alone cannot be deemed to have acquired the cell phone of this case from A with the knowledge that it was stolen, and that there was no other evidence to acknowledge it, and sentenced the Defendant to a fine of KRW 5 million on the ground that the Defendant was guilty of the ancillary facts charged.

C. The Supreme Court

Then, only the Defendant appealed against the judgment of the party before the remanding.

The court of final appeal reversed the judgment of the court of final appeal in its entirety on the ground that the judgment of the court of final appeal erred by failing to exhaust all necessary deliberations on the duty of occupational care for the acquisition of stolen property, and by misapprehending the legal principles, which affected the conclusion of the judgment, and thus, the part of the judgment of the court of final appeal concerning the conjunctive facts in the judgment of the court of final appeal should be reversed.

(d) Scope of the court's adjudication

If the first instance court prior to the remand found the Defendant guilty of the conjunctive charges, and only the Defendant appealed against the acquittal portion (the primary charges), and if the prosecutor did not appeal against the acquittal portion (the primary charges), the acquittal portion is also transferred to the final appeal court pursuant to the principle of no appeal and defense between the parties, but the part is not de facto subject to the adjudication. Therefore, the first instance court that returned the case from the final appeal court on the grounds that the judgment prior to the remand of the aforementioned conviction was erroneous, cannot re-examine the aforementioned acquittal portion and render a conviction (see, e.g., Supreme Court Decision 5014, Oct. 28, 2004).

Ultimately, the actual scope of the trial after remand is limited to the acquisition of goods by occupational negligence, which is the ancillary charge.

2. Summary of grounds for appeal;

(a) misunderstanding of facts;

The Defendant did not know that the instant mobile phone was stolen.

B. Unreasonable sentencing

The defendant asserts that the punishment (eight months of imprisonment, two years of suspended execution) declared by the court below is too small, and the prosecutor is too unhued and unfair.

3. Grounds for ex officio destruction; and

In the trial prior to remand, the prosecutor kept the charge of the acquisition of stolen property in his first place, applied for the amendment of the bill of amendment to the indictment with the addition of the acquisition of stolen property by occupational negligence, and this court permitted this, and thus the judgment of the court below is no longer maintained. However, even though there is a ground for ex officio reversal, the defendant's assertion of mistake of facts as to the primary charge is still subject to the judgment of the court of this court,

4. Judgment of misconception of facts as to the primary facts charged by the defendant

A. Main facts charged

The defendant is a person engaged in the purchase of heavy mobile phones.

On March 6, 2015, around 21:00, the Defendant purchased 34 mobile phones from July 2014 to March 21:00, 2015, including purchase of KRW 6.60,000 of the market price, which is the victim D owned by A, prior to the purchase of a stolen mobile phone (Aphone 6+60,000, which was the victim D owned by A from the victim D at the first floor, from July 21, 2014 to March 21:0, 2015, including purchase of KRW 6.6,00,00, from July 21, 2014 to March 21, 2015, as shown in attached Table 2 of the List of Crimes in the judgment of the lower court (hereinafter “instant mobile phones”).

B. Determination

As seen earlier, the judgment of the court prior to the remand cannot be rendered guilty after the remanding the primary facts charged of the instant case, which was acquitted by the court prior to the remand. As such, the judgment of the court prior to the remanding of the primary facts charged cannot be affirmed.

Therefore, the judgment of the court below which found the defendant guilty of primary facts charged is erroneous and adversely affected the conclusion of the judgment, and the defendant's assertion of mistake is justified

5. Judgment on the ancillary charges added by the trial prior to remand

A. Preliminary facts charged

The defendant is a person engaged in the purchase of heavy mobile phones.

On March 6, 2015, at around 21:00, the Defendant purchased a mobile phone (i.e., 924,000 won) equivalent to KRW 924,00 of the market price of the victim D owned by A, which was the victim D, before the victim D management E store in the first floor.

In such cases, the Defendant, who is engaged in the business of purchasing double and mobile phones, has a duty of care to confirm the identity of the seller, and to confirm who is the nominal owner in the registration of the purchased mobile phone in addition to confirming whether the purchased mobile phone is lost or stolen. If the seller is not the nominal owner in the registration, the seller has a legitimate right to sell the opening mobile phone, and whether it is possible to distribute the opening mobile phone due to the normal termination of the opening mobile phone in a normal way.

Nevertheless, the Defendant, while neglecting the above duty of care and neglecting the judgment on stolens, purchased 34 mobile phones 21.9 million won from the early July 2014 to March 21, 2015, including the purchase of 660,000 won of the above mobile phone by negligence, as shown in attached Table 2 of the judgment of the court below, including the purchase of 1 mobile phone from the early police officer on July 2014 to March 21, 200.

Accordingly, the Defendant acquired stolen goods by occupational negligence as above.

B. Judgment on the ancillary charges

1) According to the evidence duly admitted and examined by the court below and the court below after remand, the following facts are revealed.

A) The Defendant engaged in the business of purchasing heavy cell phones, while engaging in the business of purchasing mobile phones from the employees of the mobile phone sales store A as well as A, has engaged in the transaction of purchasing heavy cell phones. Among these, A, while engaging in the business of purchasing mobile phones, requested the Defendant to purchase the instant mobile phones, which was entrusted to the Defendant by the customer, and the Defendant purchased the mobile phones at the price of purchase unit price set on the day.

B) The Defendant confirmed that the instant mobile phone’s unique identification number was not registered as a stolen or lost mobile phone at the Internet site (lined mobile phone self-sufficiency system). The Defendant drafted a sales contract stating that the instant mobile phone was personal information, mobile phone model, purchase price, and the intent of selling mobile phone.

C) Information held by a mobile carrier on whether the mobile phone is opened, the nominal owner, and the normal termination of the registration are information.

2) In light of the following circumstances revealed through the aforementioned facts and records, i.e., (i) there is no way for the Defendant to directly verify the information held by the said mobile phone purchaser, and (ii) there is room for the Defendant to be in violation of the Act on the Protection of Personal Information, Promotion of Information and Communications Network Utilization and Information Protection, Etc. when verifying such information through employees of the said mobile phone sales store with the authority to inquire by the mobile phone operator, the evidence submitted by the prosecutor alone cannot be deemed to have violated the duty of due care to verify whether the seller has a legitimate authority to sell the opening mobile phone if the seller is not the nominal owner, and whether the opening mobile phone is possible to distribute it due to normal termination of the opening mobile phone, and there is no other evidence to acknowledge otherwise. Therefore, this part of the facts charged on the premise that the Defendant breached the duty of care as above, constitutes a case where there is no proof of criminal facts.

6. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, and the defendant's assertion of mistake of facts is also justified. The part of the judgment of the court below against the defendant is reversed and the following is

[Judgment as to Defendant]

The facts charged around the defendant are identical to 4.A. and 5.A. and 5.B. This constitutes a case where there is no proof of criminal facts as seen in both paragraphs 4.b. and 5.B., and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is publicly announced pursuant to Article 58(2) of the Criminal Act. It is so decided as per Disposition.