(영문) 서울중앙지방법원 2018.2.8. 선고 2017고합890 판결

On January 14, 2015, the Defendant sentenced ten months to imprisonment for fraud at the Suwon District Court, and completed the execution of the sentence on April 18, 2015.

【Criminal Facts】

The Defendant knew that the victim BB (the age of 41) operated the illegal sports soil site and kept cash amounting to KRW 5 billion in the last five billion in the custody of the bank in the residential area, and suggested that he will take money from the victim and take money from the victim in writing by taking advantage of the fact that the said money was proceeds from illegal gambling, and that the victim could not report it, and that he was aware of the defendant's accomplices who will commit the crime, he would not report it. On March 2017, 2017, he introduced BD with the victim's knowledge from BC and stored BD in the residential area with the cash amounting to KRW 5 billion in the last five billion in the residential area. The Defendant consented to BD's consent.

BD knew at the “BF parking lot located in Gangnam-gu Seoul at the end of March 2017, 2017, BG, known to BG, “A sports earth president keeps the same amount of KRW 5 billion and kept it in the house depository.” On April 1, 2017, NG offered that “I would not make a report even if he or she did so.” On the other hand, NG would make it called “I would pay KRW 1.5 billion upon receiving the money,” and that BG consented to it. BG, knowing that around that time, proposed the above criminal act to BH, while BG and B purchased electric shocks and spons to be used for the criminal act on April 1, 2017, thereby doing so on the site of the BH’s low-income vehicle and doing so.

BG around 18:00 on April 12, 2017, at the 'BJ event site at the 'BJ' in Songpa-gu 3rd hotel, Songpa-gu, Seoul, by explaining the subjects and methods of the above crime, and requesting the introduction of the representative BK from among the employees, and then requesting BL and BM to keep the sports earth president operating a driving range in BN, who is an employee of the above company introduced by BK, in the house, at the same time as the employees of BL and BM, the amount of KRW 5 billion. This money is illegal and has been kept in the house, so it is difficult for us to report its work. The person was placed in the house in the golf driving range, leading it to the vehicle, leading it to the house, and opened the safe door, leading to the payment of KRW 5 billion, and proposed BM to participate in the crime.

BG listening to the fact that around April 12, 2017, BG entered a 'BO' driving range in Gangnam-gu Seoul Metropolitan Area BN' and was committed against the victim.

BH contact with BH to bring the above electric shock machine, trine, and trine rapidly, and he moved the said vehicle to ○○ Elementary School located in Gangnam-gu Seoul, Seoul, along with BL, BM. BH was driving the said franchise XG vehicle and arriving in the front of the said car center, and BG moved the said vehicle to the said driving range, while driving the said vehicle on the said vehicle, BL, BM, and BH moved to the front of the said driving range, BL used the electric shock machine, BM’s trium wing, and used the trium tape to suppress the victims, and arrested the victims. BH was accepted in the proposal of BG to pay KRW 100 million to the said car center near the scene of the crime, and where BG moved the said vehicle to the said vehicle by force, taking the contact with BG’s vehicle into force if 5 billion won is forced.

On April 12, 2017, BG, BL, and BM arrive in front of the above golf range. BG, BG, BM did not get out of their respective tapes, electric shock machines, and three studs, and BH waiting in the vicinity of the said vehicle. BC, upon receiving a report on the on-site situation from BD with BC, the Defendant informed BD of the victim’s her appearance and her appearance in Q Q Q Q Q Q. At this point, BD was 10 billion won in front of the said golf range; BG 10 billion won in front of the said golf range; BG 30 billion won in front of the said golf range; BG 10 billion won in front of the said golf range; BG 239 days in front of the victim’s body, the Defendant conspiredd the victim with BG 60 billion won in front of the victim’s cell phone market value; BD 10 billion won in front of the victim’s body and its market value.

Summary of Evidence

1. Each legal statement of witness BG and BD;

1. Copies of each protocol of suspect examination of prosecution concerning BG and BD;

1. Each police interrogation protocol on BR and BS:

1. Court rulings;

1. Trial records, protocol of examination of witnesses, and protocol of examination of witnesses (Evidence Nos. 35);

1. Investigation report (A, BC Family Relations, relation to actual users of three mobile phones tracking real-time location, analysis of telephone conversations between suspects and other relevant analyses at the time of committing crimes, CCTVs at the place of committing crimes, telephone records, etc.);

1. Previous convictions in judgment: Criminal records and investigation reports (the report on the confirmation of criminal records, the date of release from prosecution, and the case for a suspect A);

Application of Statutes

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

Articles 334(2) and (1), 333, and 30 of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (However, the upper limit of punishment is limited within the proviso of Article 42 of the Criminal Act)

1. Discretionary mitigation;

Determination as to the assertion of the defendant and his defense counsel under Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Supreme Court Decision 55(1)3

1. Summary of the assertion

The Defendant did not conspired to commit the instant crime committed by BD, BG, etc., and was not at the scene of the crime at the time of the instant case, and as such, it could not be known of the victim’s attitude, it could not be known to BD.

2. Determination

A. The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. Even in cases where part of the competitors have not been carried out by directly sharing part of the elements of a crime, if it is recognized that a functional control through an essential contribution to a crime exists rather than merely a mere conspiracy, but rather a functional control exists through an essential contribution to the crime, the so-called crime liability as a co-principal cannot be exempted (see, e.g., Supreme Court Decision 2011Do2021, May 13, 201). The same applies to cases where the establishment of a co-principal for a co-principal is at issue.

B. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court, the Defendant proposed that BD take part in the robbery of this case with BC, and reported the progress of seeking an accomplice or preparing the crime from BD, and damage caused by BD.

By informing BG of information about a person who directly committed the instant crime, it can be sufficiently recognized that the Defendant and his defense counsel have conspired to commit the instant crime in a successive manner and have functionally shared the commission of the instant crime by leading the crime in the hinterland by informing BG of the fact that the crime was committed. Accordingly, the Defendant and his defense counsel are not acceptable.

1) Around September 2016, the victim was a person operating the Internet gambling site, etc., who leased apartment houses in Gangnam-gu Seoul and caused BR to live there, and kept the victim’s safe inside the house. However, around November 2016, the victim did not report the above safe and bring internal things to the victim. From February 2017, the victim did not know that the victim was aware of the following facts: (a) around 200 million won, including the victim’s co-ordination of the apartment house in Gangnam-gu Seoul; and (b) around 5, the victim did not report it to the police without reporting it to the victim’s co-ordination of the crime; and (c) around 205, the Defendant did not know that the victim was aware of the victim’s co-ordination of the above evidence; and (d) 5, the Defendant did not report it to the victim’s co-ordinant in the process of committing the crime.

A) On March 2017, BD introduced the victim, “AC and the Defendant, who was aware of early 2017, was in custody of the Defendant, who was in the first step of the early 2017, was in custody of the Defendant, at the same time, having been in possession of a large amount of money from the president of the sports earth and sand who operated a golf driving range,” and proposed robbery. The Defendant refused to do so and asked the Defendant to inquire of the person who would continue to commit the instant crime. In March 2017, BG notified the Defendant of the instant crime to the effect that BG would commit the instant crime. After doing so, BG made a report on the fact that BG had prepared an electrical shock machine and a trile, and delivered the CCTV’s request through BC to the Defendant, which was the place where the Defendant was committing the instant crime, and that the Defendant could not sufficiently make a statement about BG’s motive or passage of KRW 1 billion as determined by the Defendant, as well as the Defendant’s statement to the effect that BD-37.

B) From BD, the victim’s internal identity cooperates in committing the crime, and the internal identity was called as the victim and the victim, and the internal identity was the victim’s leader who operated the driving range as the same business, another partner who drawn the president, and the other partner who was in the same business. BG’s statement to the effect that “At the time of committing the crime,” even though it was later known, it was the defendant who was a private relationship of BC. At the time of committing the crime, there was a little call that BD would not commit the crime against BD, but at the time, it was said that BD had been called as a victim by telephone.”

C) At the time of proposing the instant crime to BG, BD notified that “the victim is keeping a large amount of money by operating the illegal sports soil site in custody, and even if such unlawful money was deducted, it shall not be reported.” However, the above content corresponds to the information of the victim that the Defendant became aware of through BC. Furthermore, considering that BD knew of the fact that (i) the Defendant was not aware of the victim and its surrounding persons at all other than the introduction of the Defendant via BC, it is reasonable to deem that BD received information from the Defendant and delivered it to BG.

D) In light of the following: (a) the telephone calls between the Defendants, BC, BD, and BG and the developments leading up to the movement of the victims and the location of BG, the Defendant appears to have conducted robbery on April 4, 2017, before the instant crime was committed, by the victim visiting the said golf driving range through BC and BD, by moving the said golf driving range to a nearby area of the said golf driving range; and (b) instructed the victim to either commit robbery against the victim or to ascertain the victim’s appearance and site conditions.

① On April 4, 2017, at around 01:08, the victim visited the “BO screen” driving range, which is the scene of the instant crime, at around 01:09 on the same day, BC calls at around 33 seconds and calls at around 01:10 on the same day. BD calls at around 01:10 on the same day, and immediately thereafter calls at 11 seconds, and immediately calls to BC, from around 01:15 on the same day to around 01:18, the Defendant sent two minutes in total to BC and up to 01:2 minutes on two occasions, and around 01:18 on the same day, BC calls at around 45 seconds in total (round 681-682, 684 pages).

② From around 01:27 on the same day, BG was in the Gangnam-gu Seoul Metropolitan Government BU near the said BU. Around 01:27, 01: (a) was moved to the nearest area of the said golf driving range; and (b) was made several calls from around 01:29 to 02:09 on the same day to several occasions between the Defendant and BC, BC and BD, B and B, respectively; and (c) was made one time at intervals of 30 minutes between the Defendant and BC, BC and B (the number of 682,684 pages).

③ At around 03:15 on the same day, the victim took a vehicle parked in front of the above golf driving range and left it. At around 03:38 on the same day, the victim left it completely at around 03:40 on the same day. As above, from around 03:16 on the same day when the victim left the above golf driving range, from around 03:16 on the same day until around 03:58 on the same day, the victim got out of the above golf driving range, the victim took a serial call among the Defendant and C, BC and BD, and B and BG consecutively consecutively over several occasions, and BG continued to stay around the above golf driving range until around that time (number 681-684, 686 pages).

3) Since the crime of this case was committed by BG et al. who did not know the victim who was directly committing the crime at the scene, informing BG et al. of the victim's fear and appearance. In light of the following circumstances revealed by the evidence as seen earlier, the defendant was reported through BC and BD on the day of the crime and led BG to the crime of this case by notifying BG of the victim's fear and appearance through BD.

A) At around 18:00 on December 4, 2017, the day of the instant case, BG proposed to participate in the instant crime to BL introduced from BK at the event site of BJ, and consented to it, at around 19:18 on the same day, BG knew the said facts while making three minutes and five seconds of call to BD at around 19:18 on the same day. ① Around 19:23 on the same day, BD calls to BC and 56 seconds on the same day; ② BC calls to BD at around 19:24 on the same day; ③ around 19:26 on the same day, BC calls to the Defendant for two minutes and two seconds on the same day (62 pages); and the Defendant was reported to have sought an accomplice to commit a crime by BD from the above method.

B) ① On April 12, 2017, at around 21:33, the victim entered the instant crime scene, “BO’s screen,” the Defendant called 21:47 on the same day and called 19 seconds. Around 21:48 on the same day, BD calls to BG for 14 seconds and calls to the Defendant at around 21:50 on the same day (number 62,66 pages), ② BG calls to the Defendant for 44 seconds and calls to the victim (number 62,66 pages), and ② BG calls after 8:0 on the day on which BJ was terminated? At the same time, the Defendant stated that BL calls to BD and the telephone number of BL calls to BD, and that the Defendant did not go to the 10-G witness or witness, and that there was no defect in BL calls.” In light of the fact that BG 100 on the same day, the Defendant made a statement to the effect that BG 10-G witness or witness.

C) After BG calls with BD, BG had been in force to BG, and BG had received proposals from BG to participate in criminal acts. BG calls around 21:58 on the same day and called that BG would commit a crime with 3 minutes and 49 seconds, and requested BG calls from 22:03 on the same day and 22:03 minutes and 2:30 on the same day, the Defendant was sent to BG calls and 28:30 on the same day, and the Defendant was sent to BG calls and 28:0 on the same day, and the Defendant was 28G calls and 28:0 on the same day, and 29:3G calls and 27:0 on the same day, and the Defendant was 27:0 on the same day, and 28G calls and 29:0 on the same day.

D) BG, BL, BM and B arrive at around 23:20 on the same day, and BG 2, BG, BG, and BM arrive at around 26: BG 1, and BG 2, while waiting around 23:3G 26, the Defendant was informed of BG 37 of the fact that BG 36, and that BG 36, BG 16, and the Defendant was informed of the fact that BG 36, and the Defendant was informed of the fact that BG 16, on the same day, 23:3G 46, and CG 46, respectively. The Defendant was informed of the fact that BG 37, and the Defendant was informed of the fact that BG 16, as the above date, 23:09, 3G 40, and 3G 16, respectively, and the Defendant was informed of the fact that BG 3G 16,000.

4) On April 13, 2017, around 01:00, the Defendant and BC and BD met only at a coffee shop located in Gangnam-gu Seoul Cheongdong, Gangnam-gu, Seoul. In light of the BD’s statement to the effect that “A was aware of the failure at that time to commit the instant crime, only one of the persons who committed the instant crime was used by A. at that time.” (Witness BD green 8-10 pages), the Defendant was only the Defendant and BD as above in order to inform the victims of the failure of hijacking and to discuss the countermeasures against the failure. The Defendant did not talk about the instant crime in relation to the instant crime at that time, and it was difficult for the Defendant to simply talk that BD and BD loaned golf membership as security, which was going with BD and BC, and that BC did not intervene in the instant crime in Gangnam-gu Seoul, but it was also difficult to make a statement to the effect that BD and BD did not intervene in the instant crime at that time.

5) On the day of the instant case, the Defendant borrowed money as security for golf membership rights from BD that he/she became aware of around March 2017 or introduced a person who will operate a copper import business with money. On the day of the instant case, he/she talked about the above golf membership-related issues and the scrap metal import business in the currency with BD on the day of the instant case, or on the day of the instant case, he/she asked BD and BC, which had been living in the same apartment as the Defendant, to leave oil in the oil station because the vehicle operated by the Defendant is far away from fuel, and asked BD and BC to call in the same apartment, and BC had different dates, and it is difficult for the Defendant to see that BD and B 3 were an insurance company to resolve the problem by telephone in too remote place. However, in light of the above 6th day of the fact that the Defendant did not directly talk about 10 times before and after the instant crime, it is difficult to see the Defendant’s 20th day of the instant case’s bar or 474th day.

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

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

[Determination of Punishment] Types 2 (Special Robbery) of General Criteria for Robbery Crimes

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment for 3 years, 6 years

3. Determination of sentence: Imprisonment with prison labor for not less than four years and six months; and

The defendant has taken the lead of the crime in front of the crime of this case, such as kidnapping persons to BD, proposing to commit robbery to force force a large amount of persons, seeking co-offenders from BD who consented to such act, and informing BG that directly committed the crime through BD of the victim's identity and appearance on the day of the crime. The crime of the defendant is very very rough and very rough to commit the crime.

The Defendant has been sentenced two times to imprisonment with labor due to embezzlement and fraud, and the Defendant has a previous criminal record of the first head of the judgment, and the crime of this case constitutes a repeated offense, and the degree of criticism is greater than that of the crime of this case. Considering the above circumstances, there is a need to strictly punish the Defendant corresponding to his/her criminal liability.

However, considering the circumstances favorable to the defendant such as the defendant's age, character and conduct, family relationship, motive and circumstance of the crime of this case, and circumstances after the crime of this case, the punishment as ordered shall be determined by comprehensively taking into account the following factors: (a) the defendant has no record of being punished for the same crime; and (b) the victim received a partial return of the damaged goods taken by the defendant and was not distributed the property or benefits taken by the defendant.

Judges

Judge of the presiding judge;

Judge Jin-hun

Judges Park Jong-chul

Note tin

1) With respect to the facts charged as stated in the indictment, there is no procedure to amend the indictment to the extent that the defendant does not disadvantage

Some were corrected according to the facts obtained through the investigation of evidence.

2) hereinafter referred to as "the number".

3) hereinafter referred to as “the reading”).

4) On May 1, 2017, BD moved information about victims from employees of entertainment establishments in the second examination of suspects on May 1, 2017.

The statement was made by the victim (38-339 pages), but BD operated by the victim from the employee of the amusement establishment.

It is against the common sense that the victim's private information, such as the location of the funeral and the existence of the credit cooperative, was revealed, and BD commits the crime.

On the same day, the victim's right to bG to listen to the dong line and the increase in the victim's driving range and delivered it to BG, and above BD

In light of the fact that the prosecutor's statement appears to be merely for hiding the existence of an accomplice, the above prosecutor's statement is made.

in this Court of Justice of BD, "It is difficult to believe that the defendant was able to obtain information from the defendant about the victim."

(1) An alcoholic beverage may be sufficiently reliable.

5) On April 28, 2016, BG is aware of the identity of the insider who cooperates in the crime until the time of interrogation of the suspect by the second prosecutor’s office until the time of interrogation of the suspect.

After having made a statement (298,323 pages), the above statement was modified. With respect to this, BG “Refriger BD”

In the end, it was difficult to make an accurate statement on the insiders, and thereafter the false statement was known and made a true statement.

(c)The above statements made to the effect that they are "(Defendant BG green 6 pages)." The above statements made by BG on the grounds of the change are sufficient;

We agree with this Opinion.

6) BD had contact with BG by telephone until the day immediately preceding 23:26 of the same day, and the Defendant and the telephone.

In the event that the injured party’s identity and the impression are delivered and then the injured party is notified to BG, a letter of character using B Q.

At the time of delivery to BG of the victim’s dynamics, BD sent the victim’s dynamics and increases.

In this regard, the message is sent as text message with inconvenience (Witness BD green 8 pages) and BD’s above statement.

The above statements are fully acceptable.

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