Defendant

Defendant

Maternity, Constitutional Court (Public Trial)

Law Firm LLC, Attorneys Go Young-chul et al.

Seoul Eastern District Court Decision 2011 High Court Decision 2376 Decided December 8, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. Summary of grounds for appeal;

A. misunderstanding of legal principles

The defense counsel: (a) the money that the Defendant received from Nonindicted 3 is the proceeds of gambling owned by Nonindicted 1 and the victim was stolen and temporarily temporarily kept with Nonindicted 2, but the victim did not acquire ownership or right to dispose of the said money; (b) the Defendant did not recover the said money from the victim according to Nonindicted 1’s order and did not intend to use and dispose of the said money in accordance with the economic usage, such as his own property; and (c) the Defendant was merely an aiding and abetting the crime of Nonindicted 4 in light of the degree of his participation. Nevertheless, the lower court erred by misapprehending the legal doctrine, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment of the court below (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

Since the defendant and his defense counsel fully recognize the facts stated in the facts charged of this case, they examine the defense counsel's assertion on this premise.

1) Whether the victim Nonindicted 3 cannot be the victim of the crime of extortion

The issue of whether to grant another person’s property ought to be determined by the Civil Act, the Commercial Act, and other substantive laws (see, e.g., Supreme Court Decision 2010Do15350, Apr. 28, 201). However, in the case of money, it is deemed that the said money has a high level of distribution and simultaneously is equivalent to the value of the goods, and it is consistent with the transaction norms and the social norms to place an emphasis on the value among them. Therefore, even if the money was stolen, the ownership along with the possession is transferred, and even if the money was stolen, the right to request the return is not recognized to the victim, and the issue of unjust enrichment or compensation for damages remains only

As to the instant case, even if the money, which is the object of the instant crime, was in custody of Nonindicted Party 1 through the Defendant, part of the gambling proceeds, as stated in the instant facts charged, as long as the victim stolen the said gambling proceeds as stated in the instant facts charged, and the said gambling proceeds had been kept at the victim’s house located in the Gangnam-gu Seoul Eastdong (Land Number 1 omitted), which was located a considerable distance from (Land Number 1 omitted) (Building Name and Number 1 omitted), the de facto control relationship with the said money was already transferred to the victim at the time of the instant crime. Accordingly, the instant crime was deemed to have been the object of the money owned by the victim, and the mere fact that the said money was the same as that of Nonindicted Party 1’s gambling proceeds that the victim stolen, does not interfere with the establishment of the crime of public conflict. The defense counsel’s assertion on this part is without merit.

2) Whether the Defendant had no intent to obtain unlawful orders

Even if the defendant has a claim against the victim, if he/she obtained the other party's property or property benefits by means of intimidation exceeding the degree difficult to be acceptable by social norms through the exercise of his/her right (see Supreme Court Decision 9Do4305 delivered on February 25, 200, etc.).

As seen in the above, even if the victim stolen his gambling earnings from Nonindicted 1, and the defendant delivered the money received from the victim to Nonindicted 1, as stated in the facts charged in this case, the defendant's act of receiving money by intimidation with Nonindicted 1's instructions as stated in the facts charged in this case, which confirmed that the thief was the victim, exceeded the extent permitted by social norms as a means of exercising his right, and thus, it can be recognized that the defendant has an intention to obtain unlawful profits. This part of the defense counsel's assertion only delivered the money received from the victim to Nonindicted 1, but the defendant did not have an intention to use and dispose of it as his own property. However, in the crime of this case, as long as the defendant received instructions from Nonindicted 1 and committed the crime of this case, as long as the defendant was found to have an accomplice relation, the defendant's accomplice relation is recognized, and as long as the defense counsel's accomplice relation is acknowledged, there is no reason to believe that there was no intention to obtain unlawful profits from the defendant as to the internal relation of the accomplice.

3) Whether the defendant is a mere aiding and abetting offender

Article 2 (2) of the Punishment of Violences, etc. Act requires that two or more persons jointly engage in a so-called "joint act" requires that there exists a so-called co-offender relationship among them, and that there is a case where several persons are aware of another person's crime in the same opportunity at the same place and used it (see Supreme Court Decision 9Do4305 delivered on February 25, 200, etc.).

In light of the above legal principles, the Defendant, who received instructions from the Health Team and Nonindicted 1, requested Nonindicted 4 to the effect that “on the face of Nonindicted 1 to find money, Nonindicted 4 would take the case,” and informed Nonindicted 4 of the victim’s personal information. In light of the process of soliciting and committing the instant crime in which Nonindicted 4 went to the victim with Nonindicted 4 along with Nonindicted 4 and Nonindicted 4 went to the victim and received money from the victim at the victim’s home, he had the intent to jointly process the Defendant and Nonindicted 4 with the intent to contact with the victim, and in light of the content and degree of the participation, and the circumstance of the appearance of the victim, the Defendant had a functional control over the instant crime against the Defendant’s commission of the instant crime. Therefore, the Defendant cannot be exempted from liability as a co-principal for the violation of the Punishment of Violences, etc. Act (joint conflict). Therefore, this part of the defense counsel’s assertion is without merit.

B. Determination on the assertion of unfair sentencing

In light of the method of committing the instant crime and the circumstances leading to the commission of the criminal act in which the Defendant, who became aware of Nonindicted 1’s gambling earnings that the Defendant was in custody, committed the instant crime under Nonindicted 1’s order and threatened the victim, and derived money from the victim, it is difficult to see that the degree of participation in the instant crime is minor. Rather, the Defendant took part in the instant crime and offered money to Nonindicted 4 jointly with the victim, and received money to the victim. Although it is acknowledged that the Defendant actively took part in the instant crime. Meanwhile, it is against the objective fact relevance of the instant crime, and the Defendant did not take any direct pecuniary profit from the instant crime by delivering all the money that the Defendant received from the victim to Nonindicted 1, and the Defendant did not want any criminal punishment other than a fine due to the violation of the Road Traffic Act, and the Defendant and the victim do not want to do so, and the circumstances, such as the motive and circumstances of the Defendant’s spouse, and the Defendant’s family members, who were the spouse of the Defendant, appears to have been sexually ill, and sexual.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Article 2(2) and (1)3 of the Punishment of Violences, etc. Act, Article 350(1) and Article 30 of the Criminal Act (Selection of Imprisonment)

Judges Lee Jin-tae (Presiding Judge)