2012 Highis 1299, 2013 Highis211(combined)

Violation of the Act on the Aggravated Punishment, etc. (Larceny)

2013 initially 523 Application for a compensation order

A

Kim Young-morm, sliding machine (each indictment), stuffing machine, purification machine, sliding machine (each public trial)

Attorney B, C (each national election)

Lawing Barun, Inc.

May 14, 2013

A defendant shall be punished by imprisonment for seven years. The application for compensation of this case shall be dismissed.

Criminal facts

On January 12, 2005, the Defendant was sentenced to eight months of imprisonment for larceny at the Seoul Southern District Court, and on August 16, 2006, the Seoul High Court sentenced three years and six months of imprisonment for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. on June 19, 2009 and completed the execution of the sentence. On August 19, 2010, the Seoul East East District Court sentenced three years of imprisonment for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. on July 30, 2012.

1.Fashion;

Around September 2, 2011, the Defendant was sentenced to three years of imprisonment at the Seoul Eastern District Court (hereinafter “Seoul Eastern District Court”). A prosecutor at the Seoul East East District Prosecutors’ Office (hereinafter “the Defendant”) instigated the thief E to give false testimony to the thief E who is present at the criminal trial to be guilty of the case of the complainant. On July 27, 2009, in order to manipulate the date of the crime among the statement statement made by the thief F, the Defendant was replaced on July 28, 2009. (2) G (name: G) who is the Defendant of the thief, arrested the complainant on the spot, arrested the complainant on the spot, arrested the complainant, and 1.5 million won in cash of the complainant, even though the victim made a false investigation report to the effect that there was no date on which the complainant did not appear, the Defendant conspired the victim’s abuse of authority and duty as a police officer, and conspired the victim’s thief’s statement with the investigation agency.

In addition, although the complainant made a statement on July 27, 2009 that "the complainant visited him/herself and stolen the object," he/she made a false testimony to the effect that "the complainant was unable to visit." 4) Defendant E, a witness of the appellate court trial, made a false testimony to the effect that "the complainant was unable to visit," and he/she made a false testimony to the effect that "the complainant was present as a witness in the appellate court trial of the larceny case, the complainant, and testified that "the complainant was guilty of stolen the object in our burial on or around June 2009," so he/she made a false statement to the effect that "the complainant is punished."

However, there is no fact that prosecutor D has instigated E to give a perjury, there is no fact that the F has altered the date of the F’s statement, and the criminal G did not commit any indecent act or adviser against the defendant, there is no fact that the defendant committed any theft of the defendant’s cash and other belongings, there was no false investigation report or any alteration of the F’s date of the statement, and the F and E did not have any such perjury.

Nevertheless, the Defendant prepared a complaint stating the aforementioned false facts for the purpose of having D, G, F, and E subject to criminal punishment, and submitted it to the personnel under the name of the net prison, and had the said personnel receive the above complaint by mail at the public service center of the Seoul Dong District Public Prosecutor's Office around September 30, 201, and made D, G, F, and E free order.

2. Violation of the Aggravated Punishment Act;

A. On November 1, 2012, around 13:00 on May 1, 2012, the Defendant viewed that he would purchase electronic equipment at the Haart J point in the Nam-gu Incheon Nam-gu, Incheon, and used a gap in which the victim’s attention was neglected to do so, the Defendant used the gap in which the victim’s attention was placed on the display stand to put one of the LGNoart North Korea, which is equivalent to KRW 1,507,00, into the lush dancing.

B. On November 8, 2012, around 09:36, the Defendant viewed the attitude that the Defendant would purchase electronic equipment at the hart M points managed by the victim L, the Mandong-gu, Mandong-gu, Mayang-si, Manyang-si, and used a gap in which the victim’s attention was neglected, put the victim’s attention into the hart North 1,480,00 won at the display stand. On November 14:30, 2012, the Defendant showed the view that the Defendant would purchase electronic equipment at the P points managed by the victims of the damage, while taking advantage of the difference in the victim’s attention, the Defendant used the gap in the display stand to put the victim’s attention into the 1,290,00 won at the market price on the display stand and 14:90,000 won, thereby putting the victim into the hartn-gu, Incheon-gu, Incheon.

Summary of Evidence

1. Previous convictions in judgment: References to criminal records, each investigation report (in addition to a written judgment, file of a written judgment, confirmation of the date of final release from a court, and confirmation of the date of final release from a court), and confirmation of the date of final release from a court) (2) [Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny): 2012

1. Partial statement of the defendant;

1. Each legal statement of witness I, L, Q, R, and 0;

1. In cases of the CDs attached to the investigation report (referring to the method of using the video CD maps), investigation report (referring to the case of the confirmation of CCTV at the load P points), CCTVs attached to the attachment report, such as CCTVs (referring to each load J point, P point, and the video recording of CCTV at the latest; 1. Part of field search photographs;

1. fingerprinting, replys, etc. on criminal scene appraisal results;

1. Habituality of judgment: Recognition of dampness in light of the records of each crime, the frequency of crimes, the frequency of crimes, etc. as shown in the judgment;

1. Partial statement of the defendant;

1. Each legal statement of witness G, S, E, and F;

1. A copy of each police statement made against the defendant and F;

1. Copies of each protocol of examination of witness to F and E;

1. Copy of the complaint;

Application of Statutes

1. Article applicable to criminal facts;

○ Habitual thief: Article 5-4(6) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act comprehensively

Article 156 of each Criminal Code

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment prescribed for the false accusation against each other, and between crimes of false accusation)

1. Selection of punishment;

In regard to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny), each choice of imprisonment with prison labor shall be imposed.

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That the proviso of Article 42 of the Act on the Aggravated Punishment, etc. of Specific Crimes is limited to the crime of larceny

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso (proviso) Article 42 of the Criminal Act [Aggravated Punishment, etc. of Specific Crimes who are concurrent with the punishment prescribed for a violation of the Act on the Punishment, etc. of Minor Offenses]

1. Dismissal of application for compensation;

Article 32(1)3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (Article 32(1)3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (Article 32(1)

Judgment on Defendant’s argument

1. As to the false accusation

The defendant asserts as follows. ① The defendant asserts that the date of the crime was written as of July 27, 2009, when considering the F's statement, the statement was written as of July 28, 2009 by the first day of the crime, and was written as of July 27, 2009. The defendant asserted that the defendant was written as of July 27, 2008, when the crime was committed, he could not be said to have altered D who is the investigation officer and G who was the criminal investigation officer. ② The F reported that "the stolen goods were stolen from the defendant" on July 27, 2009. On the other hand, the court testified that "It is impossible to see that the defendant's testimony was written as of July 27, 2009." If the contents of testimony in the court testimony were based on the F's false facts, so the defendant's accusation constitutes a crime of false accusation or testimony based on the facts stated in the F's statement, and thus, it would not constitute a crime of perjury or testimony.

① In light of the reasoning of the lower court’s judgment, it is reasonable to view the Defendant’s assertion as a result of the alteration of the public document’s statement in collusion with D, and there is no ground to regard the Defendant’s assertion as a result of the alteration of the public document’s statement. In addition, the Defendant’s assertion cannot be accepted, on the sole basis of the circumstance that the date of damage appears to have been corrected by the victim, the victim’s statement was written on July 27, 2009, and the amendment was made on July 28, 2009. However, according to the evidence revealed in the summary of the evidence above, it is sufficient to deem that the content of the Defendant’s complaint was a false fact. In other words, it is sufficient to deem that the above amendment was a mere rectification of a clerical error. Moreover, there is no ground to view that such alteration was a result of the alteration of the public document’s statement in collusion with D and G. Furthermore, the Defendant’s assertion cannot be accepted.

Then, according to the evidence presented in the summary of the evidence above, F did not report the thief to the investigation agency, and F did not have any fact of loss of digital camera to the police officer who visited the defendant for the investigation of the defendant's female crime, and there is no conflict between the two statements since it can be acknowledged that the testimony was made for the same purpose. In light of the contents of the statement in the complaint, it is inevitable to view that F's accusation of the above evidence was false because the defendant who confirmed F's statement constituted F's statement with F's police officer's falsity and testified differently from F's statement in court (the defendant asserted that the defendant filed a complaint based on the facts charged, but it cannot be accepted in light of the contents of the complaint). It is sufficient to accept this part of the defendant's assertion that this part was false. Therefore, it is sufficient to accept this part of the defendant's assertion.

③ According to the evidence examined above, it can be acknowledged that the remainder of the Defendant’s complaint constitutes both false facts and false facts exist.

Ultimately, it is judged that the defendant was proved without reasonable doubt that he committed the instant accusation.

2. On the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

The defendant asserts that there is no fact that he has stolen things at the time and place indicated in the facts charged, and that there is only the fact that he has distributed them as if he has stolen things, and that in the case of the H store and M store, he has entered the store, concealed his body in his body, removed his goods from the store to another place inside the store, and then released his goods. In the case of the H store of the H store of the H store, he asserts that the Nowon-gu was concealed in his body, and that he has returned his goods again in the vicinity.

However, according to the evidence presented in the above summary of the evidence, the defendant can fully recognize the fact that the defendant stolen one set of Nomt North Korea from the H, M, and P as shown in this part of the facts charged. Thus, the above argument by the defendant is rejected.

The acquittal portion

1. Summary of this part of the facts charged

On November 14:30 of 2012, the Defendant viewed that he would purchase electronic equipment at the Haart P store managed by the victim N in Nam-gu Incheon Metropolitan City, and used the gap in which the victim's attention was neglected to do so, but used the gap in the display stand, and 1 LG outward 1 unit of the market price equivalent to 100,000 won at the market price and 90,000 won at the market price.

Accordingly, the defendant habitually stolen the victim's property.

2. Defendant’s assertion and judgment

피고인은 위와 같은 물건들을 절취한 사실이 없다고 주장하므로 이에 관하여 살펴본다. 피고인이 위 공소사실과 같은 일시 · 장소에서 위 물건들과 함께 절취하였다고 기소된 델노트북 1대와는 달리 위 외장하드와 갤럭시탭의 경우 피고인이 이를 허리춤이나 주머니에 넣는 장면이 녹화된 CCTV 영상이 녹화된 CD가 존재하지 아니하므로, 이 부분 공소사실을 입증할 만한 증거들로는 0의 수사기관과 이 법정에서의 진술 및 현장수색사진 중 외장하드와 갤럭시탭을 촬영한 사진 등이 있다. 그런데 ① 0의 진술서에는 도난품으로 "델노트북 한 개(가격 1,299,000원)"와 함께 "LG 외장하드 500GB(100,000원), 갤럭시탭 7인치(휴대폰 900,000원 상당)"가 기재되어 있으나, 도난 경위에 있어서는 '피고인이 제품을 훔쳐가는 듯한 수상한 행동을 하고 양복 안쪽에 노트북이 들어있는 것처럼 보여 확인하였다'는 취지로 기재되어 있을 뿐, 외장하드와 갤럭시탭에 관한 구체적인 기재가 없다. ② 0에 대한 경찰 진술조서에도 피해내역으로 "델노트북, 갤럭시탭, 외장하드"가 기재되어 있으나, 그 외 '피고인의 양복 정장 뒤 허리춤이 불룩하게 튀어나와 있어 이를 수상히 여겨 바로 뒤따라가 무엇이냐는 물음에 도망하는 피고인의 팔을 잡아 낚아채서 확인한 결과 노트북이 바닥에 떨어져 범인임을 확신하고 동료에게 사실을 알려 112 신고를 하였다'고 할 뿐, 외장하드나 갤럭시탭을 피고인이 어떤 방법으로 훔치거나 소지하고 있었는지에 관한 아무런 언급이 없다. ③ 이런 상황에서 이는 이 법정에서 증인으로 출석하여 '허리춤이 불룩하게 튀어나와 있는 등 수상한 피고인을 매장 출입문 밖으로 따라가서 붙잡았고, 그 과정에서 노트북이 피고인의 허리춤으로부터 바닥에 떨어졌으며, 외장하드와 갤럭시탭은 자신이 피고인의 목을 눌러 제압하는 동안 도와주기 위하여 뒤따라 온 동료들이 피고인의 팔과 다리를 붙잡고 있는 과정에서 피고인의 허벅지 부위 등에서 발견하였다고 위 동료들로부터 전해 들었다'고 진술하였는데, 결국 피고인이 위 물건들을 소지하고 있는 것을 직접 본 것은 아니라는 취지이다. ④ 또한 이는 이 법정에서 'CCTV 영상을 확인한 결과 피고인이 노트북을 훔치기 이전에도 계속하여 매장 내를 배회하는 것으로 보아 아마도 피고인이 먼저 외장하드와 갤럭시텝을 훔친 다음 다시 매장으로 들어와 노트북을 훔쳤을 것'이라고 진술할 뿐, 피고인이 외장하드와 갤럭시탭을 훔치는 장면을 CCTV 영상을 통해 확인한 바도 없다. ⑤ 한편 이는 이 법정에서 '112 신고 후 경찰관이 출동하였을 때 자신이 피고인을 제압한 채 주변에 노트북, 외장하드, 갤럭시탭을 진열해두고 있었다'는 취지로 진술하였는데, 이는 출동한 경찰관인 T, U의 각 법정진술[(T : 출동 후 피고인에 대한 외표검사 과정에서 피고인이 소지한 노트북을 발견하였고, 매장과 피고인이 체포된 지점 중간 정도에서 떨어져있는 외장하드와 갤럭시탭을 발견하였다), (U : 피고인에 대한 외표검사 과정에서 피고인이 소지한 노트북을 발견하였고, 피고인 주변에 외장하드와 갤럭시탭이 놓여있었다)]과 수사보고(일반, 2012형제86449 수사기록 10쪽)의 기재(피고인 상대 외표검사 실시 후 피해품을 스스로 꺼내보이게 하여 노트북, 갤럭시탭, 외장하드를 모두 확인하였다는 취지)와 상이하다. ⑥ 위 수사보고 및 이에 첨부된 현장수색사진 중 외장하드와 갤럭시탭을 촬영한 사진은 이가 피고인을 체포한 이후 신고를 받고 출동한 경찰관이 현장에 존재하던 외장하드와 갤럭시탭을 사진 촬영한 것이기는 하나, 앞서 본 이와 T 및 U의 진술에 비추어 볼 때 그것이 곧바로 피고인이 위 물건들을 절취하였다거나 소지하고 있었다는 사실까지 증명한다고 보기는 부족하다. ⑦ 그리고 외장하드와 갤럭시탭의 경우 하이마트 소유인 델노트북과 달리 0의 개인소유 물건이므로, 이가 소지한 채 피고인을 추격하여 제압하는 과정에서 밖으로 떨어졌을 가능성도 완전히 배제하기 어렵다.

Considering these points, it is insufficient to recognize that the evidence submitted by the prosecutor alone was proven to the extent that there is no reasonable doubt that the defendant stolen gallonies with outer gallon as stated in this part of the charges.

3. Sub-resolution:

Thus, since this part of the facts charged constitutes a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of violating the Act on the Punishment, etc. of Specific Crimes in relation to this crime, the judgment of

jury verdict and sentencing opinion;

1. Opinions on the guilt or innocence;

A. Facts constituting a crime;

- guilty, 9 only for each of them

B. Innocence not guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thiety, each nine persons per one person) on the part of Haymate Pak LG outlady and one juth of just on November 10, 2012

2. Opinions on sentencing;

For the reason that three years of imprisonment (two years of imprisonment), six years of imprisonment (one person), seven years and seven months of imprisonment (one person), eight years of imprisonment (four persons), and ten years of imprisonment (one person) or more, the case against the defendant is judged as ordered through a participatory trial according to his wishes.

The presiding judge, the senior judge;

Judge Meritorious decoration

Judges Kim Dong-dong