Whether the crime of robbery is established in case where a person kills the owner of a drinking house and immediately seizes the cash possessed by the victim for the purpose of evading his/her obligation for the value of alcohol (affirmative)

In a situation where there is only two drinking house owners with the defendant and only two drinking house owners, a robbery crime is established if a person kills a drinking house owner requiring the payment of the drinking value and immediately seizes cash possessed by the victim.

Article 338 of the Criminal Act

Supreme Court Decision 4281Do42 Decided June 1, 1948, Supreme Court Decision 64Do310 Decided September 8, 1964, Supreme Court Decision 71Do287 Decided April 6, 197, Supreme Court Decision 85Do1527 Decided October 22, 1985 (Gong1985, 1588)

Defendant

Defendant

Attorney Park Jae-young

Busan High Court Decision 98No906 delivered on December 24, 1998

The appeal is dismissed.

The defendant and public defender's grounds of appeal are also examined.

1. As to the assertion of misconception of facts or misapprehension of the legal principles as to the crime of robbery and the crime of preliminary robbery due to the violation of the rules of evidence by the defendant

A. The point of robbery against the victim

According to the reasoning of the judgment of the court below, the court below recognized that the defendant caused the defendant to drink 35,00 won or more in the victim's care room in the victim's management so that he can drink and drink 35,000 won or more, and the victim requires the defendant to pay the drinking value, and the defendant's humf is not allowed to flee, and the defendant killed the victim with the intention to escape from the drinking value, and immediately left 75,000 won in cash possessed by the victim. In light of the evidence adopted by the court of first instance in the judgment maintained by the court below compared with the records, such fact-finding by the court of first instance is just, and there is no error of law of misconception of facts due to

Meanwhile, according to the evidence adopted by the court of first instance, at the time of the defendant's murdering of the victim, only the defendant and the victim were absent the victim. In such a case, when the defendant murders the victim, the victim cannot exercise his/her right to reimbursement against the defendant, and even if there is the victim's heir due to the fact that the victim did not know that he/she has a drinking-value claim against the defendant, the victim cannot exercise his/her right to reimbursement against the defendant. Therefore, in the above situation, murdering the victim for the purpose of evading his/her obligation under the above circumstances can be deemed as murdering the victim for the purpose of acquiring property benefits, and taking the cash possessed by the victim at the seat is closely related to the act of murdering the victim. Thus, the court below's finding the crime of robbery as to the series of acts by the defendant is justified (see Supreme Court Decision 85Do1527, Oct. 22, 198), and there is no error in the misapprehension of legal principles as to the crime of robbery as seen above.

There is no reason to discuss the crime of robbery against the victim by the defendant and public defender.

(b) Points of robbery;

Examining the evidence adopted by the court of first instance by the court below in comparison with the records, it is just that the court below found the defendant guilty of the robbery reserve in its judgment, and there is no error of misconception of facts due to the violation of the rules of evidence as discussed by the defendant and the public defender. There is no ground for the guidance.

2. As to the assertion of mental disorder by a public defender

According to the reasoning of the judgment of the court below, the court below rejected the defendant's mental and physical disability claim on the ground that the defendant's drinking does not seem to have reached the mental and physical disability or the state of mental and physical disability due to the drinking, in light of the amount of drinking alcohol, the motive, background, means and method of the crime, the act before and after the crime, and the circumstances after the crime, etc.

3. As to the assertion of unfair sentencing by a public defender

According to the reasoning of the judgment of the court below, the court below judged that the first instance court's sentencing that the defendant's life sentence against the defendant is inappropriate in light of the following: (a) the defendant's power, the defendant's knife's knife with the remaining knife with a knife with a knife, etc., and the knife and the nature of the crime is bad; and (b) other various circumstances that form the conditions of sentencing specified in the records, such as the circumstances and circumstances of the crime, character and behavior, home form, etc., are appropriate. In light of the records, there

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)