(영문) 서울중앙지방법원 2018.12.21. 선고 2018고합859 판결

Each order the accused to provide community service for 120 hours and to take lectures for mental therapy for 40 hours. The confiscated excess amount (No. 1) shall be confiscated.

Reasons

Criminal History 1)

1. An attempted special robbery Defendant and the victim B (the age of 55) are the mother and child. From around 2001 to around 201, the Defendant requested KRW 1 million in the amount of money received from the victim while living in a normal social life due to unknown mental illness. However, on the ground that the victim rejected the request, the Defendant was willing to take the victim’s property.

On March 29, 2018, at around 11:18, the Defendant, following the victim’s withdrawal of cash from D Bank C in Jung-gu Seoul, Jung-gu, Seoul, D Bank B-ro 365ccp, left, displayed the victim’s blick, and subsequently, attempted to take cash from the victim after the victim failed to resist, showing the transition (20.5cm in total length, 10cc in blade length) that is a dangerous object prepared in advance to return to the victim (10cc in total length). However, the victim, out of the bank, escaped from the wind.

2. Special intimidation 2)

The Defendant tried to forcibly take property from B as above at the date, time, and place mentioned in paragraph (1), but the victim E (33) who is registered security guards belonging to the D bank Eul branch, from among those who drive away from the bank, was able to see that she would drive away from it, and showed the transition of Paragraph (1), which is a dangerous object, to the victim. Accordingly, the Defendant carried dangerous objects and threatened the victim.

Summary of Evidence

1. Defendant's legal statement;

1. Legal statement of witness E;

1. Police suspect interrogation protocol of the accused;

1. The prosecutor's statement concerning B;

1. Each police statement of B and E;

1. A report on the occurrence of a robbery (special robbery);

1. A report on internal investigation (the characteristics of the scene of occurrence), a report on internal investigation (the security of the victim's criminal scene through CCTV at the scene of occurrence), or two CDs;

1. Existing existence of the excessive seizure (No. 1);

Application of Statutes

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

Articles 342, 334(2), and 334(1) of the Criminal Act (the attempted special robbery, the choice of limited imprisonment), Articles 284 and 283(1) of the Criminal Act (the occupation of special intimidation and 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 aggravation of concurrent crimes with punishment prescribed in the crime of attempted special robbery with heavier punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Orders to provide community service and attend lectures;

Article 62-2 of the Criminal Act

1. Confiscation;

Judgment on the assertion by the defendant (defense counsel) under Article 48 (1) 1 of the Criminal Act

1. Summary of the assertion

① In relation to the attempted special robbery, there was a fact that the Defendant, while walking the victim B’s lusium and threatening excessiveness, this was intended to see which her mother would have a response, and there was no intention to commit robbery. ② The Defendant, even though she said her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

2. Determination

A. In light of the following circumstances in the crime of attempted special robbery, it is reasonable to view that the Defendant committed assault and intimidation for the purpose of taking property from the victim even if the Defendant did not have any specific amount of money at the scene of the crime, even if he did not demand the money explicitly specified, as stated in paragraph (1) of the same Article. Therefore, the above argument by the Defendant cannot be accepted.

① As seen in paragraph (c), the Defendant had been treated with a mental disorder due to symptoms of anti-social personality, etc., and even though the victim and his residence were different, the victim depended on the economy of the victim. The victim made a statement at an investigative agency to the effect that, if the Defendant asked for the money, “the victim would have avoided the account transfer of 2 to 30,000 won a week, and that 100,000 won should have been changed before several months. As such, the Defendant made a statement to the effect that 1 million won should be returned to the Defendant’s first time before the lapse of one million won, and that 100,000 won would have been continuously known (the evidence record was 19), and that 100,000 won should have been reported to the effect that 1 million won had been killed (the first day of the first day of the first day of the first day of the first day of the first day after the lapse of one million won, and that 100,000 won had been killed (the first day of the first day of the first day of the first day of the first day).

피고인은 수사기관에서 '칼을 들이밀었을 때 어머니가 어떤 반응을 보이는지 보려고 그랬다. 만약 제가 어머니의 돈을 노리고 했다면 CCTV도 없고 청원경찰도 없는 곳에서 했을 것이다. 그러나 이성을 잃고 CCTV가 있든 말든 들어가서 그렇게 했다'는 취지로 진술하였으나(증거기록 86, 87쪽), 은행 내부 CCTV 영상(증거순번 7번 CD 2장 참조)에 따르면 피고인은 이 사건 당시 은행 입구에서 365코너에 있는 피해자를 발견하고도 1분가량 들어오지 않고 기다렸고, 그 후 피해자가 있는 365코너로 들어 와서 현금자동입출금기를 이용하고 있는 피해자의 뒤에서 30초가량 기다린 후 갑자기 피해자의 허리를 발로 1회 걷어차는 등 판시 제1항과 같이 피해자를 폭행·협박한 점, 피고인이 당시 피해자에게 돈을 달라거나 물건을 빼앗는 행동을 한 것은 아니라고 해도 이는 피고인이 칼을 꺼내 보이자 피해자가 급히 바깥으로 도망갔고 청원경찰 E이 피고인의 뒤를 쫓아왔던 상황 때문이었던 것으로 보이는 점 등에 비추어 볼 때, 위험한 물건인 과도를 들이댔을 때 피해자의 반응을 보기 위해 판시 제1항과 같은 행동을 하였다는 피고인의 주장은 믿기 어렵다.

B. The victim E stated in the investigative agency that "I am knife that I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knif, I knife I knife I knif. I knife I knife I knif I k I knif.

The Defendant had symptoms such as depression, impulse, violence, and influence, etc., from the date of June 11, 2003 to December 1, 2003, the Defendant was hospitalized in F Hospital as an anti-social character problem, and received outpatient treatment from the same hospital, Gneology, and clinic. After the instant case, the Defendant was hospitalized in the department of mental health of H Hospital from April 5, 2018 to May 8 of the same year, and the fact that the Defendant was hospitalized in the department of health of H Hospital from April 5, 2018 is recognized.

On the other hand, a doctor of H Hospital’s mental health department I, who treated the Defendant, presented an appraisal opinion to the effect that “The primary illness of the Defendant is friendly, shocked, and shocked, and the major symptoms of shocked impulses are fluences, aggressive impulses, and violent happiness promotions, etc., so it is deemed to have affected the above behavior” (see, e.g., evidence 4).

① However, it appears that the Defendant appears to be relatively memory of the crime of this case; ② The Defendant’s excessive use of the crime of this case at an investigative agency was carried out in place on the day of the crime; ② the Defendant printed the victim at the vicinity of the D bank branch, and the victim was aware of using the D bank branch in the vicinity of the D bank branch (Evidence No. 86 pages); ③ The circumstance where the crime was committed due to the failure to suppress one’s impulse, which led to the occurrence of the crime, can be found to be long and long; barring special circumstances, it cannot be said that the Defendant demanded the above act to restrain the impulse of the person with the above character defect and to demand compliance with the law, and thus, the defect of nature such as the shock disorder, in principle, does not constitute mental or physical disorder (see, e.g., Supreme Court Decision 2006Do5360, Oct. 13, 206).

Therefore, the defendant's above assertion cannot be accepted.

1. The grounds for sentencing: Imprisonment with prison labor for a period of two years and six months from six months to six months from 18 months;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Basic crimes: Crimes of attempted special robbery;

[Determination of type] General Criteria for Robbery. Type 2 (Special Robbery)

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Recommendation and Scope of Recommendations] Reduction Area, 2 years and 6 months to 4 years

(b) Second crime: Crimes of special intimidation; and

[Determination of Punishment] Crimes of Intimidation> Class 4 (Special Intimidation for Cumulative Offense)

[Special Sentencings] Reductions: Punishments (including serious efforts to recover damage) or where considerable damage has been restored.

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment of two months to one year. The scope of recommendations according to the standards for handling multiple crimes: Imprisonment of two years and six months to four years and six months [the ceiling of the scope of punishment for basic crimes (4 years)]; 1/2 (6 months) of the upper limit of the scope of punishment for concurrent crimes];

3. Determination of sentence: Determination of sentence: Imprisonment with prison labor for a period of two years and six months, probationary three years and the following circumstances shall be taken into consideration, taking into account the defendant's age, character and conduct, growth process, environment, motive, means and consequence of the crime, etc., and taking into account various factors of sentencing specified in the arguments of this case, including the defendant's motive, means and consequence of the crime, the scope

○ Unfavorable Conditions

As indicated in paragraph (1) of the judgment, the Defendant: (a) expressed and threatened the victim B, who is a mother using an automatic cash withdrawal machine, with an excessive amount of money; (b) expressed and threatened the victim E, a police officer assigned for special guard, who was out of the Republic of Korea, with the victim E; and (c) shows and threatened the victim E, as indicated in paragraph (2) of the judgment, and the nature of the crime is not good. The Defendant, even in peace, exercised violent language and violence against the victim B, who is the mother, and demanded KRW 1 million with the money, and refused it by the victim B, committed the crime of Paragraph (1) of the judgment. Nevertheless, the Defendant, while showing the excessive amount to the victim B and the narrow amount, made it difficult to understand the victim B’s response, such as not having received money, but having been for the victim’s response.

○ favorable circumstances

The Defendant’s mistake is against the Defendant, and the crime of Paragraph 1 of the holding, which, prior to the instant crime, did not cause property damage. The victims do not want to be punished by the Defendant. The victims are suffering from mental illness, such as depression, shock disorder, etc., and the victim B and the her mother, who is the mother of the Defendant, want to take care of and provide medical treatment.

Judges

The presiding judge; and

Awards and Decorations for Judges

Judges Lee Jong-deok

Note tin

1) Some of the facts charged were revised to the extent that it does not disadvantage the Defendants’ exercise of their right of defense.

2) Although the prosecution was indicted as “a person who attempted to commit a quasi-special robbery” under this part of the charges, on December 7, 2018, the prosecution changed the name of the crime to a special intimidation.

In addition, an application for amendment to a bill of amendment was also filed on December 21, 2018.

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