(a) The relation to the number of crimes in case of habitual larceny crimes committed before and after the habitual robbery crimes or in the middle thereof;

B. Conditions of sentencing in a sentence of death penalty

A. The crime of robbery includes the elements of larceny that a person obtains possession of another person's property against his will in light of the content of the elements of the crime. In addition, if habitual robbery and habitual larceny concurrent crimes are committed, in determining the applicable punishment, a person who habitually robbery only takes the same frequency of robbery is not going beyond habitual robbery but rather resulting in unreasonable consequences that are contrary to the equity, compared to the case of his or her relative on habitual larceny. In light of the following, in a case where a person who habitually robbery commits habitual robbery commits habitual robbery, he or she should be punished as a single comprehensive crime of habitual robbery by absorbing habitual robbery by absorbing habitual robbery.

B. Even if the death penalty system is recognized under the current law, it shall be applied only to the extreme extreme punishment that deprives a human life itself of its life, and it shall be applied only in extenuating circumstances where the life cannot be preserved. Thus, in sentencing the death penalty, it shall be permitted only where the punishment is deemed inevitable in light of all circumstances such as the motive for the crime, appearance, nature of the crime, means of the crime, cruelness, the means of the crime, the seriousness of the result, the number of victims, damage appraisal, the age of the offender, criminal record, and circumstances after the crime.

Articles 37, 38, 329, 332, 333, and 341 of the Criminal Act

1. Supreme Court Decision 83Do1068 Decided June 28, 1983 (Article 5-4 (12) 678 Gong710 Gong1158 of the Act on the Aggravated Punishment, etc. of Specific Crimes) 84Do1573 Decided December 26, 1984 (Article 5-4 (20), Article 678-1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 5-4 (20), Article 747-284 of the Act on the Aggravated Punishment, etc. of Specific Crimes) 2. Supreme Court Decision 85Do926 Decided June 11, 1985, Article 41 (5) 111 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 41 (5) of the Criminal Act) 3B526 Gong757 1038), Article 87Do1240 Decided 13, 1987

Defendant 1 and four others

Prosecutor and Defendants

Daegu District Court of First Instance (87 high Gohap95, decided)

The judgment of the court below is reversed.

Defendant 1 shall be punished by death penalty, by imprisonment for life, and imprisonment for life.

Goods entered in the list of attached goods seized shall be forfeited from the accused described in the column for the relevant criminal defendant.

One gold-line seized shall be returned to the victim non-indicted 1, one gold-line (No. 127), one gold-line (No. 129), and one brick (No. 136).

1. Summary of grounds for appeal;

A. Summary of the grounds for appeal by the Defendants and their defense counsels

(1) The gist of Defendant 1, 3, 4, and 5’s appeal grounds of appeal is as follows: (a) Defendant 1 did not have conspired with the superior Defendant to kill Nonindicted 2; (b) Defendant 3 did not share the victim Nonindicted 3’s act of murder since he was raped in a vehicle near the scene at the time when the victim was killed; and (b) Defendant 3 and 5 did not share the victim’s act of killing Nonindicted 2’s timber by first thrown away; but (c) Defendant 4 did not have a criminal intent of murder; and (c) Defendant 4 took part in the act of cutting down the victim Nonindicted 2’s timber with Defendant 1, etc. on the ground that he did not have a special robbery, etc.; and (d) Defendant 4 did not have any influence on the judgment of the court below, which found the Defendants guilty of the robbery, even though there was no error in the misapprehension of the legal principles as to the robbery of this case’s crime.

(2) The summary of Defendant 3 and 4’s grounds of appeal No. 2 is as follows: Defendant 3 and 4 were involved in the crime of larceny, robbery, etc., and attempted to stop the crime; Defendant 1 was unable to escape from the organization by assaulting and threatening the above Defendants, thereby resulting in the robbery of this case; and thus, Defendant 1 was compelled to commit the robbery of this case by force or intimidation. However, even though the court below neglected this point in view of the existence of criminal liability of the above Defendants, the court below erred in the misapprehension of legal principles or misapprehension of legal principles as to forced acts.

(3) Defendants 1 and 5’s grounds of appeal Nos. 2, 3, and 4’s grounds of appeal, Defendant 2’s grounds of appeal, and the gist of the grounds of appeal by Defendants 2 and 4, as well as the defense counsel’s respective grounds of appeal by Defendants 2 and 3, and the summary of the Defendants’ respective grounds of appeal by their defense counsel should be sentenced to strict punishment for the Defendants’ acts. However, all the Defendants, as juveniles after the age of 20, did not properly distinguish themselves, led to the instant crime, as they did not lead to the instant crime. In addition, considering the growth process, environment, and other circumstances of the Defendants, the lower court that sentenced Defendant 1, 2, 3, and 5 to death penalty, and the sentence of imprisonment for life against Defendant 4 is too unreasonable.

B. Summary of the grounds for appeal against the prosecutor's defendant 4

Defendant 4 did not differ from that of an adult as he is 19 years of age, and there is no reason to distinguish the punishment with other Defendants in light of the content of the crime committed by Defendant 4, frequency of the crime, degree of participation, etc. Furthermore, in this case, Defendant 4’s crime, which shows the extreme scarcity in fear of citizens by taking a scarcity to the police who conducts patrol as a wedding, and by exercising violence, must be sentenced to extreme punishment against Defendant 4 in the same way as other Defendants in light of the general prevention of crimes and special prevention of crimes. However, the judgment of the court below that sentenced the imprisonment for life, even though the amount of the punishment is too uneasible, is unreasonable.

2. Determination on the grounds for appeal

A. Examining the evidence duly examined and adopted by the court below as to the assertion of mistake of facts by Defendant 1, 3, 4, and 5, according to the records, as decided by the court below, the defendants took the victim Nonindicted 2 and Nonindicted 3's proposal to seize a passenger car and money from the victim Nonindicted 3, to rape Nonindicted 3, and to force the above victims by threatening them in mountain knife, etc., and then kidnapping them, and rape Nonindicted 3; further, in order to eliminate the evidence on their own crime, they were killed by Nonindicted 2, and discussed with Nonindicted 2 to throw away it into the reservoir, and jointly with the main line during the commission of the above victims, and there is no other sufficient evidence to find any error in finding facts in relation to the robbery of the above defendants, and therefore, this assertion of mistake of facts cannot be accepted.

B. Determination as to the assertion that the act was forced by Defendant 3 and 4

According to the evidence adopted by the court below, from the end of January 1987, and from the end of February 1987 to the end of February 1983, 1983, Defendant 4 committed the larceny with Defendant 1, who was committing the crime of larceny with the motion picture, etc. since the police officer around February 1987 and around August 1983, and the crime of larceny was developed from February 20, 1987 to the robbery of taking deadly weapons into custody and taking money into account at night, and it was caused to commit the crime of robbery, etc. in the course of the robbery in the Marina, 1987. In that process, even though it is recognized that Defendant 1 played a main role, there is no evidence to view that the crime of this case by the above Defendants was committed by violence which could not be resistanced by Defendant 1, and therefore, the above assertion cannot be accepted.

C. Determination ex officio as to Defendant 1, 2, 3, and 4

Before deciding on the grounds for appeal of unfair sentencing by the prosecutor against the above Defendants and Defendant 4, the court below, ex officio, examined the above Defendants, and according to Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act"), Article 334(2) and Article 324 of the Criminal Act, Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Robbery) and Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 331(2), Articles 342 and 329 of the Criminal Act, shall be deemed as concurrent crimes with other crimes, and the crime of robbery shall be deemed as including the elements for larceny to obtain possession of another person's goods against the will of the owner of the right in light of the elements of the crime, and if habitual larceny and concurrent crimes are to be determined, the court below erred by misapprehending the legal principles as to habitual robbery or robbery by 700 square meters, and thus, it is unreasonable.

D. Determination on Defendant 5’s assertion of unfair sentencing

Even if the death penalty system is recognized under the current law, the death penalty is a serious extreme punishment that deprives a human life itself of it, and it shall be applied only in extenuating circumstances where it is impossible to maintain the life. Thus, in sentencing death penalty, it shall be permitted only when the punishment is deemed inevitable in light of all circumstances such as the motive, appearance, crime quality, means of crime, cruelness, degree of result, victim, number of victims, damage assessment, age of the offender, criminal record, and circumstances after the crime (see Supreme Court Decision 87Do1240, Oct. 13, 1987).

According to the records, the nature of the crime is cruel and significant. The method of crime is a collective act by carrying a deadly weapon and using a vehicle, and it is impossible to pay citizens socially uneasiness because of its diseasiness. Meanwhile, Defendant 5 did not take advantage of the following facts: (a) Defendant 1 et al., who was a student of the school, 6 days before and after the death of the defendant 1 et al.; (b) Defendant 1 et al., went away from the time when he took a house to go off the defendant; (c) Defendant 1 et al., al., took advantage of his age group such as Defendant 1 et al.; (d) Defendant 4 times the frequency of the robbery; (d) Defendant 1 took advantage of other Defendants’ title 1; and (e) Defendant 1 et al., was not sentenced to the punishment of imprisonment with prison labor for 1 year other than the punishment of this case; and (d) Defendant 1 et al., was not sentenced to the punishment of imprisonment with prison labor of this case.

3. Conclusion

Therefore, the part of the judgment below against Defendant 1, 2, 3, and 4 is reversed ex officio in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the part against Defendant 5 is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the appeal against Defendant 5 is justified, and it is reversed in accordance with Article 364(6)

The summary of the facts constituting the crime acknowledged as a member of the National Assembly and the summary of the evidence are as follows: "Defendant 1 was sent to each Juvenile Department on October 13, 1982 due to larceny at the Busan District Court on March 2, 1984; Defendant 2 was sentenced to a suspended sentence for two years on September 20, 1986; Defendant 3 was sentenced to a non-prosecution disposition at the Daegu District Court General Court of Law on October 24, 1985; Defendant 4 was subject to a protective disposition of violation of the Punishment of Violences, etc. Act on May 1983; Defendant 5 was sentenced to a suspended sentence for two years on September 20, 198; Defendant 2 was sentenced to a suspended sentence for one year and six months on September 24, 1985; Defendant 3 was sentenced to a non-prosecution disposition of rape; Defendant 4 was sentenced to a special larceny; Defendant 5 was sentenced to a suspended sentence of imprisonment with prison labor on March 24, 1987."

1. The statements made by the Defendants in compliance with the law

1. In addition to the criminal records of the Defendants prepared by the chief of the Port Police Station, the references to such criminal records are as stated in each corresponding column of the lower judgment, and such references are cited as they are in accordance with Article 369 of the Criminal Procedure Act.

피고인들의 판시 각 행위 중 피고인 1의 판시 제1. 나의 (2),(3), 다의 (1), 라, 제3의 가, 나, 다, 마, 바, 피고인 2의 판시 제1의 나의 (2), (3), 다, 라, 제3의 나, 다, 마, 바, 피고인 3의 판시 제1의 가, 나의 (2), (3), 다의 (1), 라, 제3의 다, 마, 바, 피고인 4의 판시 제1의 가, 나의 (2), (3), 다, 라, 제3의 라, 마, 바, 피고인 5의 판시 제1. 라의 특수강도 및 절도의 각 점은 각 피고인별로 포괄하여 특가법 제5조의 4 제3항 , 형법 제334조 제2항 , 제331조 제2항 , 제329조 , 제342조 에, 피고인 1, 2, 3, 4의 판시 제1. 나의 (1)의 강도상해의 점은 형법 제337조 , 제30조 에, 피고인 1, 3의 판시 제1. 다의 (2), 피고인들의 판시 제2. 가의 강도강간의 각 점은 각 형법 제339조 , 제30조 에, 피고인들의 판시 제2. 가의 강도살인의 점은 각 형법 제338조 , 제30조 에, 판시 제2. 나의 사체유기의 점은 각 형법 제161조 제1항 , 제30조 에, 판시 제2. 다의 자동차방화의 점은 각 형법 제166조 제1항 , 제30조 에, 판시 제2. 라의 감금의 점은 각 폭력행위등처벌에관한법률 제3조 제2항 , 1항 , 제2조 제1항 , 형법 제276조 제1항 에, 판시 제2. 마의 현주건조물방화의 점은 각 형법 제164조 , 제30조 에, 판시 제2. 바의 상해의 점은 각 폭력행위등처벌에관한법률 제3조 제2항 , 제1항 , 제2조 제1항 , 형법 제257조 제1항 에, 피고인 1, 2, 3, 4의 판시 제4. 공용물건손상의 점은 각 형법 제141조 제1항 , 제30조 에, 피고인 1의 판시 제5. 가의 상해의 점은 폭력행위등처벌에관한법률 제2조 제2항 , 제1항 , 형법 제257조 제1항 에, 판시 제5. 나의 손괴의 점은 폭력행위등처벌에관한법률 제2조 제2항 , 제1항 , 형법 제366조 에, 피고인 1, 3, 4의 판시 제6. 특수공무집행방해치상의 점은 형법 제144조 제2항 , 제1항 , 제136조 제1항 , 제30조 에 각 해당하는 바, 이 사건 범행의 내용, 수단과 방법, 경위, 결과, 범행횟수, 범행 후의 정황 등 제반사정을 참작하여 소정형 중 피고인들의 강도살인죄에 대하여는 사형을, 피고인들의 각 강도강간죄와 각 특가법위반죄에 대하여는 무기징역형을, 피고인 1, 2, 3, 4의 각 강도상해죄와 피고인들의 각 현주건조물방화죄 및 피고인 1, 3, 4의 특수공무집행방해치상죄에 대하여는 각 유기징역형을, 피고인 1의 판시 제5의 각 폭력행위등처벌에관한법률위반죄와 피고인 1, 2, 3, 4의 각 공용물건손상죄에 대하여는 징역형을 각 선택하고, 피고인들의 위 각 죄는 피고인별로 형법 제37조 전단의 경합범이므로 형법 제38조 제1항 제1호 에 의하여 가장 중한 판시 강도살인죄에 정한 형으로 각 처벌하기로 하되, 피고인 2, 3, 4, 5에 대하여는 피고인 1과 비교하면 절도의 범행횟수가 적고 절도와 강도 등 범행과 강도살인등 범행은 피고인 1이 주도하고 위 피고인들이 이에 따름으로써 이루어진 점, 이 사건 강도살인으로 인하여 희생된 생명은 1인에 그친 점, 피고인들은 19세에서 23세에 이르는 청소년들로서 이 사건 이전에 폭력, 절도 등으로 1, 2회 소년부송치나 집행유예의 판결을 선고받은 전력이 있는 외에는 별다른 범죄의 경력이 없을 뿐더러 범행 후 자기의 잘못을 깊이 뉘우치고 있는 등 그 정상에 참작할 사유가 있으므로 형법 제53조 , 제55조 제1항 제1호 에 의하여 각 무기징역으로 작량감경을 하여 피고인 1을 사형에, 피고인 2, 3, 4, 5를 무기징역에 각 처하고, 압수된 별지몰수품 목록기재의 물건들은 이 사건 범행에 제공된 물건으로서 범인 이외의 자의 소유에 속하지 아니하므로 형법 제48조 제1항 제1호 에 의하여 각 해당 피고인들로부터 이를 몰수하고, 압수된 주문 제3항 기재 물건들은 판시 제1. 라의 (1)범행의 장물로서 피해자에게 환부할 이유가 명백하므로 형사소송법 제333조 제1항 에 의하여 이를 피해자 공소외 1에게 환부한다.

It is so decided as per Disposition for the above reasons.

Judges fixed-term (Presiding Judge) and fixed-term lectures;