The method of determining whether an intent to obtain unlawful gains exists in the robbery crime established by evading a debt by assaulting or threatening a creditor.

In order to establish the crime of injury by robbery, the crime of robbery must be established first, and the intent of unlawful acquisition or unlawful acquisition should be established in order to establish the crime of robbery. In the robbery crime established by assaulting and threatening creditors, the intent of unlawful acquisition is an important constituent element distinct from simple violent crimes. Whether there was an intent of unlawful acquisition to evade the Defendant’s obligation at the time of assault and intimidation ought to be carefully and closely deliberated and determined. Since the intent of unlawful acquisition is expressed in mind, the determination of whether there was an intent of unlawful acquisition should be made by comprehensively taking account of the objective circumstances before and after the crime, such as the relationship between the Defendant and the victim, the type and amount of the obligation, the background leading up to the assault, the degree and method of assault, and the circumstances after the assault, etc.

Article 333 of the Criminal Act

Supreme Court Decision 2004Do1370 Delivered on May 14, 2004

Defendant

Defendant

Law Firm Woo, Attorney Kim Jong-soo

Seoul High Court Decision 2019No2458 decided April 9, 2020

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Summary of facts charged

Around 01:50 on May 27, 2019, the Defendant: (a) provided the beer equivalent to KRW 159,000 at the main shop operated by Nonindicted Party 1 (man, 39 years of age); (b) paid KRW 22,00,00 to the victim Nonindicted Party 1 and the victim Nonindicted Party 2 (year 25), who is an employee of the victim, who was demanded the payment of the drinking value; and (c) attempted to give a main point without paying the remaining drinking value. As Nonindicted Party 1 demanded that the victim put the Defendant and pay the remainder of drinking value, the Defendant continued to demand that the victim pay the remaining drinking value; (d) the Defendant her face after putting the head’s face over the face of Nonindicted Party 1 and making the head of Nonindicted Party 1, who was used on the floor, take a part of the faces and her face when taking the head of Nonindicted Party 1, who was on the floor, was able to visit Nonindicted Party 1, who was on the part of the Defendant.

As a result, the Defendant acquired a total of KRW 137,00 property benefit by assaulting the victims, and caused the victims non-indicted 1 to suffer a bodily injury for about four weeks of treatment, and suffered a necessary injury for about three weeks of treatment to the victim non-indicted 2.

2. Lower judgment

The lower court found the Defendant guilty of the facts charged of the instant case. For that reason, even if the Defendant was not the main purpose of assaulting the victims, the Defendant was aware that he would be relieved of the drinking value by assaulting Nonindicted Party 1, the main operator, and thus, the Defendant was at least aware of the intention of robbery.

3. Supreme Court Decision

A. To establish the crime of injury by robbery, first of all, the crime of robbery must be established. To establish the crime of robbery, the intent of unlawful acquisition or unlawful acquisition must be made (see Supreme Court Decision 2004Do1370, May 14, 2004, etc.). The intent of unlawful acquisition is an important constituent element separate from simple violent crimes in the robbery crime established by evading the obligation by assaulting and threatening the creditor. It shall be carefully and closely examined and determined as to whether there was an intent of unlawful acquisition to evade the Defendant’s obligation at the time of assault and intimidation. Since the intent of unlawful acquisition is expressed in mind, determination of whether there was an intent of unlawful acquisition by taking into account the objective circumstances before and after the crime, such as the relationship between the Defendant and the victim, the type and amount of the obligation, the background and method leading up to the assault, the degree and method of assault, and the circumstances after the assault, etc.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) On May 27, 2019, the Defendant, around 01:50 on May 27, 201, drank at the main place operated by Nonindicted Party 1, the Defendant ordered to be dynasium equivalent to KRW 159,00.

(2) 피고인은 피해자 공소외 2로부터 술값 지급을 요구받고 2회에 걸쳐 현금 22,000원을 지급하고 주점을 나가려고 하였고, 피해자 공소외 2가 피고인을 주점 계산대 쪽으로 데리고 왔다. 피고인과 피해자 공소외 1은 그곳에서 말다툼을 하였고, 피해자 공소외 1이 손으로 피고인의 가슴을 밀치자, 피고인은 손으로 피해자 공소외 1을 가리키며 흥분한 모습을 보였다. 피고인과 피해자 공소외 1은 술값 문제로 서로 삿대질을 하며 계속 말다툼을 벌였고, 피고인이 술값을 지급하기 위하여 체크카드를 교부하였으나, 계좌의 잔액이 부족하여 결제가 되지 않았다. 피해자 공소외 2가 피고인에게 계좌이체를 해도 된다고 하였으나, 피고인은 ‘계좌이체를 할 줄 모른다.’고 하면서 술값 지급을 거부하였다. 이후 피고인과 피해자 공소외 1의 말다툼이 심해졌고, 그 과정에서 피해자 공소외 1이 계산대 위에 있던 손전등을 들어 피고인의 얼굴에 비추고, 손전등으로 피고인의 팔이나 몸통을 툭툭 치거나 꾹꾹 누르는 등 행위를 하자, 피고인이 팔을 휘저으며 이를 뿌리치기도 하였다.

(3) 피고인이 피해자 공소외 1을 피해 주점 출입문 쪽으로 나가려 하자, 피해자 공소외 1이 뒤에서 피고인의 옷을 잡아당겼고, 이에 피고인이 뒤돌아서며 피해자 공소외 1의 머리채를 잡고 넘어뜨린 후 주먹으로 피해자 공소외 1의 얼굴을 때리면서 “니가 나를 무시해.” 등과 같은 욕설을 하였다. 피고인은 자신을 만류하는 피해자 공소외 2를 주먹으로 때렸고, 피해자 공소외 2가 주점 밖으로 피신하자, 바닥에 쓰러져 있던 피해자 공소외 1의 머리를 수차례 발로 차는 등 폭행을 계속하였고, 이에 피해자 공소외 1은 실신하였다. 이후 피해자 공소외 2가 주점으로 돌아와 다시 피고인을 만류하자, 피고인은 주먹으로 피해자 공소외 2를 때렸고, 피해자 공소외 2가 주점 밖으로 도망가자 피고인은 피해자 공소외 2를 따라서 주점 밖으로 나갔다. 피고인은 잠시 후 주점으로 돌아와 쓰러져 있던 피해자 공소외 1의 머리와 몸통을 수차례 발로 차고, 근처에 있던 우산꽂이를 집어 들어 피해자 공소외 1을 향해 내리친 후 피해자 공소외 1의 머리를 수회 걷어찼다.

(4) Since then, the Defendant was arrested as a flagrant offender by a police officer upon receipt of a report that he left the main place. At the time the police officer arrived at the main place, the Defendant was on the floor of the main place.

C. According to the following circumstances revealed through such factual basis and records, it is difficult to deem that the Defendant had an intention of unlawful acquisition to evade an alcoholic value debt at the time of assaulting the victims.

(1) While the Defendant was traveling with the victim Nonindicted 1 and Nonindicted 1 due to the payment of the alcohol value, the Defendant was in a state where Nonindicted 1 suffered from a defect in the victim’s act, such as taking the fingers, etc. on his own face, leaving his body by hand, etc., and the victim Nonindicted 1 committed assaulting Nonindicted 1 of the victim by putting his clothes he wanted to give a main point, and assaulting the victim Nonindicted 2.

(2) The victim Nonindicted 2 was faced with the Defendant’s assault out of the main point of harm, and the victim Nonindicted 1 was used on the main floor and made resistance impossible. Therefore, if the Defendant had an intention to evade drinking-value obligations, it is natural to deviate from the scene. Nevertheless, the Defendant went out of the main point because she got away from the victim Nonindicted 2, thereby assaulting the victim Nonindicted 1 again to return to the main point, and when the police officer called out after receiving a report, went on the main floor when he arrived at the site.

(3) The liquor value that the Defendant did not pay at a main point is not a large amount. The Defendant was employed as a worker for work at the construction site, and the Defendant had income, and on the day of the instant case, settled the liquor value, etc. without any particular problem in other singing or main points prior to the instant error.

D. Nevertheless, the lower court found the Defendant guilty of the facts charged of this case. In so determining, the lower court erred by misapprehending the legal doctrine on the intent of unlawful acquisition of the crime of injury by robbery, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

The Defendant’s appeal is with merit, and the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee (Presiding Justice)