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(영문) 서울고등법원 2016.11.24 2016노2163
특수강도등
Text

The judgment of the court below is reversed.

Defendant

A shall be punished by imprisonment with prison labor for five years and ten months, and by imprisonment for five years and six months.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding of facts or misunderstanding of legal principles in the facts charged in this case, the lower court found Defendant A1 guilty of the violation of each Specialized Credit Financial Business Act stated in [Attachment Table 1 to 10] in [Attachment Table 3] of the facts charged in this case. However, in Article 3 of the facts charged in this case, since the deposited money was withdrawn from the cash withdrawal period using a function of combined use of the cash card of the check card, it does not constitute the use of a debit card under the original usage of the debit card, it does not constitute a crime of violating the Specialized Credit Financial Business Act. Therefore, the lower court’s conviction of this part of the conviction of the lower court is erroneous or misunderstanding of legal principles. 2) The sentence (six years of imprisonment) imposed

B. The punishment sentenced by the lower court to Defendant B (six years of imprisonment) is too unreasonable.

2. An act of withdrawing a deposit or withdrawing cash from a cash withdrawal machine by using a credit card or debit card which is duly decided upon ex officio, does not constitute larceny that excludes his control against the will of the manager of the cash withdrawal machine, and transfers the cash under his/her own control, nor constitutes robbery that forcibly takes the cash of the owner of the forcibly taken credit card or debit card.

(See Supreme Court Decision 2007Do1377 Decided April 13, 2007). Special robbery as stated in Paragraph (b) of Article 2 of the facts charged of this case refers to the withdrawal of cash from the cash withdrawal machine in the fourths, such as the list of crimes, in combination with three physical card and one credit card taken by the Defendants from the victim I with three parts of the physical card and one credit card attached to the list of crimes. Thus, in order for the Defendants to withdraw cash from the cash withdrawal machine in the fourths, such as the list of crimes No. 1 through No. 6: The No. 7 of the crime list from the automatic payment machine in front of the L convenience store in the Yeongdeungpo-gu, Seoul Special Metropolitan City. The cash withdrawal using the national card from the cash withdrawal machine in front of the agricultural branch in the Yong-gu, Seoul Special Metropolitan City.

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