2018Gohap345 Special robbery

1. A;

2. B

Kim Jong-hwan (prosecutions, public trials), and public trials (public trials)

Law Firm good-person (for the defendant)

Attorney Kim Jong-hee

Law Firm LLC (For the defendant)

Attorney Kim vice-sik, Counsel for the plaintiff-appellant

August 29, 2018

Defendants shall be punished by imprisonment for not less than three years and six months.

One (No. 1) (No. 1) of the seized mobile phone (SM-G150NS) shall be forfeited from Defendant A.

Facts of crime

The Defendants are the dynamics of Defendant A and Defendant B as the son, and Defendant A and the son were the victims C (Nam, 41 years of age) and the son and the son who operated the exchange center with the Makao Casino casino-related business. The victims were punished by a large amount of money by operating the illegal sports earth site, Defendant A and the son got a apartment house to the Defendants, and the Defendants had the G golf driving range opened in F and operated by the Defendants. On October 2016, the victims did not report the theft.

After the theft accident, the victim's relationship with the defendant A, such as the victim's return to another woman, and whether the driving range continues to be operated. The defendants and D, on March 2017, captured the victim by taking advantage of the fact that the victim was unable to report the damage to the money once from the proceeds of the crime, and decided that the victim forced the victim to take the cash amounting to 5 billion won stored in the safe of the residence and divided the victim. In order to make the victim not to be disclosed, D recruited the accomplices who will engage in kidnapping and taking the crime of forcibly, and the defendants gathered the crime plan to use the victim's information, such as the victim's appearance and moving line, by providing the accomplices recruited through D with information, and by using H and I, which do not seem to s/ I in the process.

According to the public invitation with the Defendants, D informed the J, who is an organized violence offender, as well as the co-offender who will commit the above crime, and proposed that D will give a large share to the success of the crime while transmitting it to K with a large number of criminal records, such as special robbery, and then D, J, and K will commit the crime in the vicinity of the Seoul Gangnam-gu L station S, Gangnam-gu, Seoul, and K will have 3.5 billion won to remove the remainder of 1.5 billion won when it was successful in the crime with a large number of criminal records, such as robbery, injury, etc., at the NV, K proposed that the victim, including the Defendants, will take part in the crime, and that the victim will take part in the crime with a large number of violent power units, and that the victim will take part in the crime with a large amount of 0 billion won, and that the victim will take part in the crime with the above 1.5 billion won after the request of SMM 200 and P will take part in the crime at the parking lot.

위와 같이 범행 계획이 완성되고 이를 실행해 옮길 공범들까지 모집된 이후 2017. 4. 12. 저녁 무렵 피해자의 후배인 U이 피고인들이 운영하는 서울 강남구 F에 있는 G 골프연습장을 방문하자, 카운터를 보고 있던 피고인 A는 U에게 피해자한테 '놀러 오라'고 전화해보라고 하여 피해자가 방문할 것이라는 말을 듣고 피고인 B과 함께 D에게 범행 준비를 하도록 연락하였고, D은 J, K를 통해 이 등에게 순차 연락하며 범행을 실행하도록 지시하였다. 이에 따라 0, S, T, P는 서울 강남구 V 초등학교 앞 카센터에서 만나 P의 그랜저 XG 차량을 타고 위 골프연습장 앞까지 이동하는 중에 S이 전기충격기를, T가 삼단봉을 각각 사용하여 피해자를 제압하고 이 테이프를 사용하여 피해자를 결박한 후 피해자를 납치하기로 하였고, P는 1억 원을 지급하겠다는 이의 제안을 받아들여 범행 현장 부근의 위 카센터에 차량을 대기하고 있다가 피해자를 납치한 후 50억 원을 강취하면 0의 연락을 기다려 그와 같이 강취한 돈을 위 차량으로 옮기기로 하였고, 같은 날 23:20경 위 골프연습장 앞에 도착한 후 각자 대기하였다. 피고인 A는 같은 날 23:20 경부터 23:40경 사이에 위 골프연습장 실내에서 원래는 피해자와 골프를 친 후 함께 나가려고 했던 U에게 '남아달라'고 부탁하여 붙잡아둔 채 카운터를 보는 척하며 피해자의 동태를 유심히 관찰하면서 피고인 B, D에게 순차적으로 '안경을 썼다', '베이지색 코트를 입었다', '화장실에 손 씻으러 간다', '이제 나간다'라는 메시지를 보낸 후, 같은 날 23:39경 피해자가 골프연습장을 나서는 순간 일어서서 모니터 화면을 가리면서 CCTV 화면 대신 인터넷 창을 띄워 자신의 바로 뒷자리에 앉아 있던 U이 방범용 CCTV 화면을 보지 못하도록 막았고, 피고인 B은 D을 통해 대기 중인 공범들에게 현장 상황을 전파하여 범행을 실행에 옮기도록 시켰다. 범행 실행을 지시받은 0, S, T는 같은 날 23:39경 피해자가 위 골프연습장에서 나와 그 앞에 주차되어 있는 롤스로이스 차량에 승차하려고 하자 갑자기 피해자에게 달려들어, S이 전기충격기로 피해자의 가슴, 목 부위 등에 수회 전기 충격을 가하고, 0, T는 손과 발로 피해자의 온몸을 수차례 폭행하여 피해자의 반항을 억압한 후, 0이 피해자가 바닥에 떨어뜨린 피해자 소유의 시가 6,000만 원 상당의 리차드 밀 손목시계 1개, 현금 880만 원이 들어 있는 시가 미상의 지갑 1개, 시가 100만 원 상당의 아이폰 6 휴대전화 1대, 시가 350만 원 상당의 롤스로이스 차량 열쇠 1개 등 시가 합계 7,330만 원 상당의 재물을 빼앗았으나, 피해자가 극력 반항하는 바람에 피해자를 차량에 태워 납치하지는 못하였다.

As a result, the Defendants conspired with D, J.K, K,0, S, T, and P, carried the victim with an electric shockor, trine, etc., and forced the victim to take property from the victim after suppressing his resistance.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each legal statement of C or U;

1. Each legal statement of witness 0, K and W;

1. Copies of each protocol of suspect examination of S, T, P, and R;

1. Some statements among the copies of each protocol of examination of suspect by prosecution against D or J;

1. Inventory (Evidence Nos. 250) and each protocol of seizure (Evidence Nos. 251, 280);

1. A copy of the investigation report (the confirmation of CCTV images at the scene of the case, the thorough analysis of CCTV images related to damaged articles, the confirmation of prior answers to such CCTV images as suspects0, K, etc., the analysis of the suspect K and other telephone conversations on the day of committing the crime, the analysis of the telephone conversations between suspects and the telephone conversations at the time of committing

1. Investigation report (the result of the seized suspect's smartphone photo, Apolyphop sene analysis result, D. A's siren analysis result);

1. At the site of the incident, CCTV CDs, indoors, and simultaneous reproduction pages of parking lots; 16 caps of CCTVs; and 13 CDs of CCTV images;

1. A copy of a copy of the call details of a nearby the G golf driving range (explication), a copy of the suspect K phone call details, a copy of the organization of the date of each suspect’s own telephone, at the time of committing the crime, and the details of telephone conversations before and after the crime ( April 12. 19:4.

13. A copy of the screen of CCTV image data in 07 City/Do.

1. Notes to B smartphone photographs attached to such pictures, 23 copies of seized B smartphone photographs, 12 copies of seized A smartphone photographs, responses to requests for digital sirens, summary, digital siren analysis reports;

1. J.K, K,O, S, T, X first instance rulings (the Central District Court Decision 2017Gohap451, etc.), D first instance judgments (the Central District Court Decision 2017Gohap890) and the application of the law;

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

Defendants: Articles 334(2) and (1), 333, and 30 of the Criminal Act (Optional to Imprisonment)

1. Discretionary mitigation;

Defendants: 1. Confiscation of Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below) 1.

Defendant A: Determination on the Defendants and their defense counsel’s assertion under Article 48(1)1 of the Criminal Act

1. Summary of the assertion

A. Of the facts charged in the instant case, the part that the Defendant’s safe custody of the apartment in which the Defendants reside constituted a negative image as if the Defendants were the criminal of the said cash theft case, which is irrelevant to the facts charged, as stated in the following: (a) around October 2016, the indictment in the instant case is invalid due to the violation of the principle of an indictment only.

B. The Defendants did not have conspired with D, K,O, etc. to commit the robbery of this case.

2. Determination

A. Judgment on the violation of the principle of an indictment only

However, among the facts charged in the instant case, the Defendants did not state the said cash theft case as an offender, and the content of the said cash theft case pertains to the motive that the Defendants, including the Defendants, who became aware of the fact that they planned robbery against the victim, failed to report on illegal gains even though the victim was stolen, and thus, it is difficult to deem that the Defendants, etc. were likely to hinder the judge from understanding the substance of the crime by causing a judge’s prejudice.

B. Determination as to the Defendants’ conspiracy

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, it can be sufficiently recognized that the Defendants conspired to commit the instant crime in order and functionally shared the commission of the instant crime by informing the victim of the information about the victim via D through D, and subsequently, directly shared the commission of the instant crime.

1) Since the crime of this case was committed by O, S, and T (hereinafter referred to as "O, etc.") did not know the victim who is the object of the crime, informing the victim of the victim of the victim's her her her her her her her her her her her her her her her her her her her her her with the victim's her her her her her her with her her her her with her her her her with her her her her her face at the time of the crime. At the time of the crime, K her her her her her her her her her her face with her face with her face with her face with her face with her face of her face with her face with her face of her face with the victim's her face with the victim's her face with the victim's her face with the victim's her face of the robbery.

2) However, around April 12, 2017, Defendant A got victims to the instant golf driving range through U in the instant golf driving range (3 pages, evidence records 2: 903 pages) around 22:06, when the victim arrived at the instant golf driving range, and 22:06, and 3:4 times from the instant golf driving range to the point of 2:0,000, the CCTV screen installed in the instant golf driving range (hereinafter referred to as the “instant monitoring”), and 3:5 times from the above 4:4: 6: 6: 3: 22:12: 22:25: 25, and 23: 4: 3: 4: 4: 4: 4: 24: 4: 3: 4: 25: 44, the victim got to the above screen.

B) Defendant A made a statement to the effect that Defendant A did not contact an investigative agency’s question other than giving male-child Y and Z message on the day of the instant crime (Evidence No. 499, 2, 656, 953, 954), and the cell phone used for giving and receiving Y and 7 message was revealed to be other smartphones, not the above sporad, but the Internet shopping site, with the above spores (Evidence No. 959, 960). However, Defendant A’s above spores were ardd for most short time, and in particular, around 22:2, Defendant A’s above spores were 1 in order to deliver the above spores to the victim’s accomplice on the phone (Evidence No. 4736, 760). In light of the fact that the instant spores were given to the victim’s spores, Defendant A appears to have been given the victim’s sporess 1 and 74 of evidence.

C) In addition, around 23:39 on the same day, Defendant A got 1 to look at the instant monitoring system several times immediately after the date of this case’s golf driving range. On the other hand, Defendant A, an employee of the instant golf driving range, left her hand in the direction to view the instant monitoring. (Evidence 2: 1012 pages, 4: 762 pages of the evidence record) Defendant A’s above behavior was very subnatural, and around 23:39, it is difficult to see that Defendant A’s 20th day before the date of this case’s golf driving range was commenced, and Defendant A’s 20th day before the date of this case’s golf driving range, and Defendant A’s 20th day of this case’s video recording. Defendant A’s 20th day of this case’s video recording is difficult to be seen to have been carried out. Defendant A’s 30th day before the date of this case’s video recording was commenced.

3) Meanwhile, on April 12, 2017, immediately after the instant crime, Defendant B made conversations with D and 16 times from around 23:41 to around 03:43 on April 12, 2017 (Evidence Record 3:215, 216 pages), ① Defendant B and D calls before and after the instant crime, several calls were made between D and J, and K on several occasions (D was convicted of the co-offender of the instant crime, and J and K became final and conclusive upon conviction). ② Even if Defendant B and D consider the number of times of the instant crime and the number of times of the instant crime to be carried out, it appears that the CCTV did not directly appear to have been carried out between Defendant A and the victim through the instant crime (Evidence No. 3 of the evidence record, 123 to 127 of the evidence record) and the CCTV was delivered to Defendant A and the victim, and it appears that the CCTV did not directly appear to have been carried out between Defendant A and the victim after the instant crime.

나) 이에 대하여 피고인 B은 이 사건 범행 당시 자신은 집에서 잠을 자고 있었고, 2017. 4. 13. 새벽 피고인 A와 통화를 하면서 비로소 이 사건 범행이 발생한 사실을 알았다고 주장한다(증거기록 1권 466쪽, 2권 1031쪽). 그러나 앞서 든 증거들에 의하여 인정되는 다음과 같은 사정 즉, ① 피고인B은 2017. 4. 12. 23:41경 D과 통화한 이유를 묻는 수사기관의 질문에 대하여 "자신은 평소에 D에게 일상적인 이야기를 다하는데, 피고인 A로부터 이 사건 범행 발생사실을 듣고 D에게 전화하여 이를 알렸다."는 취지로 진술하고(증거기록 1권 473쪽), 이후에는 진술을 번복하여 위 23:41경에는 자동차 기름이 떨어진 것과 관련하여 보험회사를 알려주기 위하여 D과 통화한 것이고, 2017. 4. 13. 00:00경 D과 다시 통화하면서 이 사건 골프연습장에 큰 일이 터졌다고 말하였을 뿐 강도범행이 있었는지에 대하여는 말해주지 않았다고 진술하였으나(증거기록 2권 1028쪽, 1029쪽), 이 사건 범행 발생 이후 피고인 B이 피고인 A와 최초로 통화한 시간은 2017. 4. 13. 00:34경으로 확인되는 점(증거기록 3권 215쪽), ② 또한 피고인 B은 2017. 4. 13. 01:04경 D을 만나 무엇을 하였는지를 묻는 수사기관의 질문에 대하여는 이 사건 범행 장면이 찍힌 CCTV에 관한 이야기를 하였다고 진술하였으나(증거기록 1권 474쪽), 피고인 B이 이 사건 범행 장면이 찍힌 CCTV를 확인한 것은 2017. 4. 13. 01:44경으로 확인되는 점(증거기록 4권 761쪽 CD 영상) 등에 비추어 보면, 피고인 B의 위 주장은 그대로 믿기 어렵다. 다) 또한 피고인 B은 이 사건 골프연습장에 오기 전인 2017. 4. 13. 01:04경 AC에 있는 AD 커피숍에서 D을 만나고, 01:33경 이 사건 골프연습장에 도착한 이후 01:44경부터 01:45 경까지 이 사건 범행 장면이 찍힌 CCTV를 확인한 후 곧바로 01:46경 D에게 전화를 하였으며, 02:57 경부터 03:47 경까지 이 사건 골프연습장 밖에서 D을 만난 것으로 보임에도(증거기록 2권 632쪽, 936쪽, 937쪽, 1092쪽, 3권 215쪽, 4권 761쪽 CD 영상), 이와 달리 수사기관에서 '2017. 4. 13. 00:34경 피고인 A와 통화한 이후 D을 만나지 않고 바로 이 사건 골프연습장에 갔고, 강도 범행 장면이 무서워서 CCTV를 보지 못하였으며, 그 이후에 자신을 데리러 온 D을 만나기 위하여 이 사건 골프연습장 밖으로 나갔다'는 취지로 진술하였는바(증거기록 2권 671쪽, 676쪽, 1034쪽), 피고인 B의 위와 같은 진술은 자신이 D에게 이 사건 범행 이후의 현장상황 및 CCTV에 찍힌 범행 장면 등을 직접 전달한 사실을 숨기기 위한 것으로 보인다.

4) Defendant A stated that the Defendants did not use the instant app for a mobile phone conversation with Z other than Z, and that he did not know what H or H prior to the arrest in the instant case (Evidence No. 1, No. 506, No. 864) and reversed the statement that the Defendants used the instant app No. 1 when they went overseas (Evidence No. 2, No. 1070), ② Defendant B stated that H and AE were only installed and did not use it (Evidence No. 2, No. 874, No. 879 of the Evidence No. 8, No. 879): Defendant AE stated that the Defendants did not have installed the instant app No. 1, No. 1, No. 844 of the instant case, and that the Defendants did not use the instant app No. 1, No. 854 of the instant case’s phone No. 84 of the instant case’s mobile phone No. 1084 of the instant case’s phone No.

Therefore, each of the above arguments by the Defendants and their defense counsel is rejected.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Type] 2 Robbery (Special Robbery)

【Special Convicted Person】

[Scope of Recommendation] Basic Area: Imprisonment for 3 years to 6 years

3. Determination of sentence: The crime of this case with three and a half years of imprisonment is a case in which the Defendants received the victim's property by sharing their roles in a successive and systematic manner with multiple accomplices, and the Defendants took charge of the core role of the crime, such as informing the victim of the victim's identity and appearance, and used a secret method so as not to reveal the circumstances of the Defendants' participation; by abusing these points, the Defendants were denied the crime and did not repent of their mistakes; the victims were punished for the Defendants; the victims were partly refunded the damaged goods and benefits taken by the Defendants; the victims were presumed to have not been distributed the property or benefits taken by the Defendants; Defendant A was first criminal; Defendant B did not have the criminal records beyond fines; Defendant B did not have the criminal records; and the records and arguments of this case including the age, character and behavior, environment, family relationship, motive of the crime, and circumstances after the crime.

The senior judge of the presiding judge;

Judge Lee Sang-hoon

Judges Park Il-young