(영문) 춘천지방법원 2016.10.14.선고 2016고합58 판결

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Defendant

Prosecutor

Defense Counsel

Imposition of Judgment

Text

Reasons

Judges

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(영문) 춘천지방법원 2016.10.14.선고 2016고합58 판결

가.주거침입·나.강도상해·다.절도미수

Cases

2016Gohap58(a) Influence

(b) Injury by robbery;

Defendant

1.(a) A

2.(c)(B);

Prosecutor

The court shall have jurisdiction over the prosecution, the tear of the adjudication.

Defense Counsel

Attorney C (Defendant A)

Attorney B (Defendant B)

Imposition of Judgment

October 14, 2016

Text

Defendant A shall be punished by imprisonment with prison labor for eight months.

Defendant B is innocent.

The summary of the judgment of innocence against Defendant B is published.

Reasons

Criminal facts

The poor names misrepresented the investigative agencies and financial supervisory agencies, and therefore, they are willing to collect and keep in cash the money deposited in the bank because the personal information is exposed and the damage is anticipated, so they are willing to commit the thiety crime that steals money and valuables, and the so-called 'the so-called 'the collection measure' that steals cash directly by intrusion upon the residence.

피고인 A은 2016. 7. 4. 02:55경 경기 시흥시 E에 있는 B의 집에서, 스마트폰 중국 SNS 어플 '뭐뭐'를 통해 알게 된 성명불상자로부터 '우리 회사에서 현금을 일반인 집에 놓아두면, 집에 들어가서 가지고 나온 후, 환전소에 가서 중국으로 송금해 달라. 성공 하면 송금한 돈의 10 % 를 주겠다.'는 요청을 받고 이를 승낙함으로써, 위 성명불상자들 의 수거책 역할을 담당하게 되었다.

On the other hand, at around 13:30 on July 8, 2016, one of the above persons under whose name the victim was living in Chuncheon City F (hereinafter referred to as "the victim was 69 years of age) calls, and the post office employees made a passbook under the name of the ordinary Do bank using customer's deposit information, and received one million won per case. The Financial Supervisory Service and the Ulsan National Police Agency jointly tried to arrest the post office employees, they did not speak at any time, and put the 20 million won deposited in the name of the victim in the home air conditioners. On the other hand, at around 15:12 of the same day, the victim stated money in the air conditioners, and the victim opened the gate to the victim, and made it known to the victim that the victim was living in the front of the house."

Defendant A, at around 15:12 on July 8, 2016, under the direction of a person with no name, who uses Ad'I, "I", and was in front of the house of the said victim, and entered the house through open gate, thereby infringing upon the victim's residence in collusion with the employees of Bosing singing singing singing singing singing singing singing singing sing sing

Defendant A attempted to bring KRW 20 million to the victim’s house in the house through the above house, as described in paragraph (1) of the temporary border as described in paragraph (1). However, Defendant A attempted to bring about KRW 20 million to the victim’s house and to the police officer who was divingd in the house, but failed to bring about the intent in advance and failed to bring about the intent.

1. Defendants’ respective legal statements

1. Partial statement of witness G;

1. Each prosecutor's interrogation protocol against the Defendants

1. Part of the prosecutor's statement concerning G;

1. Some police interrogation protocol against the Defendants

1. Statement to J police officers;

1. A investigation report (A or B's mobile phone text translation); 1. A's mobile phone text translation; and a report based on digital evidence analysis; 1. A's mobile phone text translation;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 342 and 329 of the Criminal Act (the attempted larceny and the choice of imprisonment) and Article 319(1) of the Criminal Act

of this chapter, the choice of imprisonment;

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the provisions concerning attempted larceny with heavier punishment)

Punishment Aggravation for Concurrent Crimes)

Judgment on Defendant A and his defense counsel’s assertion

1. Summary of the assertion

The Defendant, while having not entered a ward of the victim's house, had escaped immediately from the room of the house, and thus, did not commence the commission of larceny.

2. Determination,

A. The time to commence the commission of larceny refers to the time when the commission of larceny begins to commit an act closely in infringing another person’s de facto control over property. Whether to commence the commission of larceny ought to be determined by comprehensively considering the method, mode, surrounding circumstances, etc. of the crime in a specific case (see, e.g., Supreme Court Decision 82Do2944, Mar. 8, 1983).

B. In light of the following circumstances, (1) the Defendant had been aware of the fact that the Defendant had not entered the Defendant’s house, and that the Defendant had not been aware of the fact that the Defendant had been able to enter the Defendant’s house, and that the Defendant had not been aware of the fact that the Defendant had been able to enter the Defendant’s house, and that the Defendant had not been aware of the fact that the Defendant had been able to enter the Defendant’s house, and that the Defendant had not been aware of the fact that the Defendant had been able to enter the Defendant’s house, and that the Defendant had not been aware of the fact that the Defendant had been able to have been able to enter the Defendant’s house, and that the Defendant had not been aware of the fact that the Defendant had been able to have been able to find money from the Defendant’s house, and that the Defendant had not been able to have been able to find money from the Defendant’s house in light of the fact that the Defendant had been able to know that the Defendant had been able to enter the Defendant’s house.

C. Furthermore, the crime of larceny, like this case, committed on the premise of a certain crime plan, by deceiving the victim and allowing him to keep goods at a specific place in accordance with the crime plan is very important and essential part to escape de facto control over the victim's property. The collection measures are as follows: the object of the theft, the location of the stolen goods, and the method of taking them into the place where the stolen goods are located and promptly bring the stolen goods and complete the crime. As long as the act of taking the stolen goods into the place where the stolen goods are located is prior to the transfer in accordance with the prior plan with other accomplices in light of the characteristics of the crime above, since the act of taking the stolen goods into the place where the stolen goods are located is closely connected to the actual control over property. According to the above evidence, the defendant believed that the prior work of the Bosing organization as stated in its reasoning was successful and went into the victim's house. Thus, it is reasonable to deem that the victim already entered the victim's possession of goods at the time of its commencement.

D. Therefore, we do not accept this part of the Defendant and his defense counsel’s assertion. The reasons for sentencing are as follows.

Although there are circumstances to consider Defendant A with no record of the same crime, the thief of this case’s thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of thief of this case. However, in light of the evidence submitted, the above Defendant appears to have been aware of any type of crime, but cannot be understood.

In the above point, the defendant's age, character and conduct, environment, family relationship, motive, means and result of each of the crimes of this case, various sentencing conditions as shown in the records and arguments, such as the circumstances before and after the crime, and the jury's opinions on sentencing shall be determined as ordered by the decision.

1. Defendant A

A. Summary of the facts charged

The Defendant, as described in Paragraph 2 of the holding in the thief, went away from the main gate and escaped in the direction of the left side of the main gate, and maintained the above situation on the alleyway, and at the time the Defendant was able to escape arrest of the Defendant by breaking the Defendant’s left shoulder line on the front side of the back of the shoulder gate that the Defendant was wearing, at the time, at the time thief, carried the thief on one hand in the direction to the right side of the victim, and caused the victim to go beyond the floor, and caused the victim to go beyond the floor, and caused the victim to go on the stief, which requires approximately two weeks of medical treatment.

B. The assertion and judgment

1) The assertion

A) The Defendant consistently entered the investigative agency from the investigative agency to the present court, and subsequently, during the process of the victim’s escape from the police station, stated that the victim went to the police without any act of sprinking the victim or sprinking the victim. Based on this, the Defendant did not exercise the force corresponding to the assault, and that the victim’s injury was the result of his own act in the course of actively arresting the Defendant, so the Defendant cannot be regarded as robbery and injury, and even if the victim’s loss was spread once, the act did not reach the degree of suppressing the victim’s intention of arresting the Defendant, and thus, the Defendant cannot be regarded as an assault for robbery.

B) In order to establish the crime of injury by robbery against a person commencing the commission of larceny, ① a person commencing the commission of robbery, ② a person committing assault and intimidation for the purpose of evading arrest, ③ a third party having inflicted an injury on a third party. Therefore, in the instant case, it is necessary to examine whether the Defendant committed an assault against the victim for the purpose of evading arrest.

2) Determination

A) Scope of review

The crime of robbery injury in this part of the facts charged is premised on the establishment of quasi-Robbery as a crime of robbery. Thus, it is examined whether the crime of robbery can be established including whether the crime of robbery can be established.

B) Relevant legal principles

The crime of quasi-Robbery stipulated in Article 335 of the Criminal Act, which is a constituent element of the crime of robbery, is sufficient if it is acknowledged that the other party’s resistance may be generally and objectively possible as a means of suppressing the other party’s resistance, in balance with the degree of the assault stipulated in Article 333 of the Criminal Act, i.e., the degree of suppression of the other party’s resistance. This is determined according to whether it was sufficient to suppress the attack power of arrest in light of the specific situation, etc. to arrest (see, e.g., Supreme Court Decision 2010Do8535, Sept. 9, 2010). In addition, in cases where the injured party’s injury is a victim of the victim’s own injury as a result of the victim’s active arrest act in the course of the victim’s active arrest act, the victim’s injury cannot be counted as an injury by robbery (see, e.g., Supreme Court Decision 85Do1109, Jul

C) Review

(1) As to the assault, which is the premise of the injury resulting from robbery of this case, the prosecutor assumes that “the Defendant spreaded the victim once in the direction to the right side of the victim by hand, and caused the victim to go beyond the floor.” However, as to the facts charged in this part, the victim’s investigative agency and the court’s statements in the investigative agency related to this part of the facts charged are irrelevant to the following circumstances that may be recognized by evidence adopted in this Court, and thus, it is difficult to believe them as they are.

(A) At the time, the Defendant had been driving the police at the speed of damage, and the Defendant was the victim in the direction of the Defendant’s driving, and at the time, the Defendant appears to have left only one string at the right side in the future. As seen above, if the Defendant was under the speed of turning the back, and if the Defendant, who is a female under the age of 70, she was under the age of 70, she would not only disst the Defendant compared to the Defendant, but also she was under the influence of the Defendant, she may go beyond the speed of the Defendant without the involvement of other acts.

(B) The victim made a statement to the effect that the Defendant was deprived of the Defendant’s wing the wing neck, thereby spreading to the right by the Defendant. However, in the prosecutor’s office and this court, it is doubtful as to whether the method of breaking the wing wing wing itself, such as making a statement that the Defendant was able to have the wing wing wings in both hands and hand, is accurately memoryed at the time of the crime. In particular, it cannot be ruled out that the crime of this part was committed in a timely manner, and thus, the possibility that the victim was aware of the situation at the time.

(C) The victim made a statement to the effect that he fell about 4 to 5 meters at the time at the investigative agency. However, according to the investigation report (the telephone conversations of locked police officers at the time of interrogation) submitted by the defendant as impeachment evidence for the victim's statement in this court, K, who observed the scene at the time, made a statement to the effect that she goes beyond the victim's seat, it is difficult to believe it as it is. If the victim goes beyond the victim's seat, such as K's statement, there seems to be possible that she was a victim at a different speed without exercising any special external power.

(d)Flue and kneeel, the side part of the principal injury of the victim identified by photograph, are sufficient enough even if the victim gets the Defendant's string by hand and without exercising any other tangible power, if the Defendant goes beyond the wind as it is, without exercising any other tangible power.

(2) Other evidence adopted by this Court alone is insufficient to recognize that this part of the facts charged is insufficient to acknowledge that the Defendant committed an assault and injury to the victim by booming the victim in both hands, and there is no other evidence to acknowledge that there is no reasonable doubt.

(3) The jurors of the instant case rendered a verdict of innocence on this part of the facts charged, including the injury resulting from robbery and attempted robbery, which is a reduced fact.

(4) If so, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, a not-guilty verdict should be rendered under the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the accused is found guilty of attempted larceny crimes in this part of the facts charged and within the scope of the facts charged, inasmuch as it is found that there is no concern that substantial disadvantage to the defendant’s exercise of his right of defense may be inflicted upon the defendant in light of the progress of the trial, the court may recognize the office of a criminal defendant other than the facts charged ex officio within the scope recognized as identical to the facts charged even if the indictment has not been modified. This part of the facts charged contains a crime of attempted larceny, and this part of the facts charged contains a sufficient hearing during the trial process, and even if the defendant is punished as attempted larceny, there is no concern that substantial disadvantage may be a defendant’

2. Defendant B

A. Summary of the facts charged

1) Occupations into residence

The Defendant, in collusion with A and Non-Name D’s employees, followed A who entered the victim’s house and went into the victim’s house to the victim’s house, and chip was put into the victim’s residence.

2) The charge of attempted larceny

The Defendant, as described in the foregoing Paragraph 1, entered the victim’s house and subsequently, conspired with a staff member of the Singishing operations in collusion with A to bring about the money of the victim believed to be in a cooling season, as described in Paragraph 2 of the judgment, but did not receive any money from the police officer who was locked.

B. Determination

1) Each of the facts charged is the act committed on the same date and time as the same accomplice, and one of the major issues can be recognized as a public-private partnership.

2) Whether the defendant entered the victim's house or not

First of all, since the defendant denies the fact that he entered the victim's house, I would like to see whether the defendant entered the victim's house with the victim's house. The victim's prosecutor's statement and court statement are admissible as evidence to acknowledge it, i.e., the victim's entry into the victim's house immediately after the case, i.e., the police officer's statement that 1 person entered the victim's house after the case. 2 person entered the prosecutor's office; ii) three or more police officers, who were staying in the house despite the defendant's entry into the victim's house, were not aware of the defendant's house; iii) the police officer's statement that he was in the present situation related to the situation at the time, and after that, after that, the police officer's statement that he went to the victim's house, the defendant did not know that she went to the victim's house directly from the present house, and that it was difficult to recognize that she did not have any other evidence than the victim's house.

3) Whether the conspiracy relation and functional control over the crime can be recognized

A) As such, since it is impossible to recognize the fact that the Defendant entered the victim’s office, the allocation of a specific act of execution is denied in the facts charged. In such a situation, in order to find a guilty against the Defendant, the relationship of conspiracy and functional control over the criminal act should be specifically proven. However, in a case where the Defendant denies the criminal intent together with the conspiracy, the facts constituting such subjective element are bound to be proved by the method of proving indirect facts or circumstantial facts that have considerable relevance with the criminal intent due to the nature of the object (see, e.g., Supreme Court Decision 2002Do6103, Jan. 24, 2003). Therefore, we examine whether there is any indirect facts and circumstantial facts that prove them.

B) According to the evidence adopted in this court, A used a conversation with an employee of the Defendant’s passbook and intended to introduce the Defendant B to the said organization; ② A was moving to the king in accordance with the direction of the Bosing Organization; ② A continued accompanying the Defendant in the course of moving to the Switzerland; ③ purchase of Masc and her mother and her mother and her mother and her mother in the course of committing the crime; ④ demanded that the said Bosc and her mother and her mother were necessary to take money for the Mescing in the atmosphere as above; ④ At that time, A demanded that the said Bosc and her mother and her mother should take money for the Mescing of the Defendant’s passbook during the waiting organization; and, in relation to the public offering relationship, A was aware of what kind of the instant criminal conduct was and whether the Defendant’s name and her mother and her mother were allocated; and thus, in light of the fact that A and half of the policy of this case, the Defendant’s name and her statement were given to the Defendant.

However, the following circumstances acknowledged by the evidence adopted in this court are as follows: ① A has been aware of the work of the principal in this court; ② A has made a statement to the effect that he had only followed the defendant without any special role; ② A has not talked with the defendant; ③ A has made a statement to the effect that he had entered the cooling house, a detailed crime, and entered the victim's house after he had been changed; ③ At the same time, A has made a statement as to profit distribution; ④ The defendant has not been discussed with the defendant on profit distribution rate; ④ The defendant appears not to have made a direct conversation with the assistant; ② The defendant appears to have been able to have been informed of the contents of this case's interview with the assistant; ② The defendant could not be seen as having been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have able to have been able to have.."

4) If the above possibility cannot be ruled out, the evidence adopted in this court alone cannot be deemed as having proven that there was a conspiracy relationship between the defendant, A, and the employees of Bosing under the name of the defendant, to the extent that there is no reasonable doubt as to each of the facts charged, and it cannot be deemed that there was a functional control over the crime on the premise that there was a functional control over the crime.

5) The jury of the instant case also rendered a verdict of innocence on each of the facts charged at the unanimous discretion.

6) Therefore, each of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Jurors verdict and Sentencing Opinion

1. A verdict of guilt or innocence;

A. Defendant A

1) Occupations into residence

○ "guilty": 9 jury (many aury)

(ii) the injury by robbery;

00 Not guilty: Nine jurors (per day).

3) The fact that the crime of robbery was reduced

A) The injury resulting from robbery

00 Not guilty: Nine jurors (per day).

B) A quasi-Robbery attempted.

00 Not guilty: Nine jurors (per unanimouss);