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(영문) 서울고등법원 2016.11.03 2016노2545
현주건조물방화미수등
Text

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for a term of two years and ten months.

Reasons

1. Summary of grounds for appeal;

A. In light of the legal principles, the general crime of fire prevention of the instant ordinary vehicle and the crime of attempted fire prevention of the present structure are committed by only one fire act, and only one crime of attempted fire prevention of the present building is established. The lower court erred by misapprehending the legal principles on the number of crimes, thereby causing a mistake to regard the general crime of fire prevention and the present structure as substantive concurrent crimes of attempted fire prevention.

B. The sentence imposed by the lower court on the Defendant (principal sentence: three years of imprisonment) is too unreasonable.

2. Determination

A. 1) Determination of the misapprehension of the legal principle as to the assertion of fire is a representative public dangerous crime as provided by the Criminal Act, and the number of the crimes shall be determined according to the legal interest and protection of the public safety, not by the number of the objects of fire. Accordingly, in the case of setting fire to the buildings, etc. where the applicable provisions are different by one fire prevention act, it is reasonable to be punished by the comprehensive crime of the most severe crime. 2) In full view of the evidence adopted by the court below, the defendant can be recognized as having committed a single fire-fighting act, which is a general automobile, by setting fire-fighting, by setting fire to Loneex Corst, Car Karen car, and Karen car, which is a 18-dong apartment building, and by setting fire-fighting to the 18-dong household units, which is the present owner of the apartment building. Thus, among the charges of this case, the fact of ordinary car fire-fighting and the attempted crime of present main structure

Nevertheless, the court below recognized that the crime of ordinary car fire prevention and the crime of attempted fire prevention of present owner's building are separately established, which committed a misunderstanding of legal principles as to the number of crimes.

Therefore, the defendant's assertion of legal principles is justified.

B. Article 48(1)1 of the Criminal Code provides that "goods provided or intended to be provided for an act of crime" as objects of confiscation. Among them, "goods provided for an act of crime" is recognized as being directly used for, or actually contributed to, the act of crime.

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