(영문) 서울중앙지방법원 2017.12.22. 선고 2017고합965 판결

On July 9, 199, the Defendant was sentenced to one year and six months of imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, at the Seoul Central District Court on October 29, 2004, and was sentenced to one year and six months of imprisonment with prison labor for the same crime at the Seoul Central District Court on September 29, 2006, and was sentenced to three years and six months of imprisonment with prison labor for the same crime at the Seoul Central District Court on November 13, 2009, and on July 1, 2016, the Defendant was sentenced to three years and six months of imprisonment with prison labor for the same crime at the Seoul Central District Court on August 28, 2016.

【Criminal Facts】

On August 11, 2017, at around 18:38, the Defendant: (a) taken a newspaper that was in possession of the victim F, who was approaching the back of the electric car in the dong line No. 3 of the Seocho-gu Seoul Metropolitan City, using the combined gap of the electric car in the street from the subway No. 3 of the Seocho-gu to E station, thereby cutting down the part of the victim’s back and opening the back of the back of the back of the back of the back of the back of the bus; (b) USD 21, USD 23,000 in cash owned by the victim; (c) USD 23,00 in Hanhwa-gu, Seoul; (d) KRW 23,00 in cash owned by the victim; (e) KRW 3,00 in the face of the back of the bus; and (e) KRW 1, 1,000 in the lot card.

As a result, the defendant was sentenced to punishment twice or more due to the habitually larceny crime, and habitually commits larceny within three years after the execution of the punishment is completed.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of witness F;

1. Police officer's statement and prosecutor's statement regarding F;

1. Three copies of a report on the occurrence of theft, report on internal investigation (the category of suspect among several photographs against the victim), report on internal investigation (the identification of the suspect identified by the victim), report on internal investigation (the identity of the suspect identified by the victim), report on internal investigation (the attachment of relevant evidence records), and each accompanying material, report on investigation (the date and time of the crime, the attachment of CCTV images at places, and the attachment of CCTV video CDs);

1. Previous records: Criminal records, investigation reports (examination of applicable provisions of Acts in relation to cases to which a person is accused), judgments of the same kind and personal confinement status;

1. Habituality of the judgment: In light of the fact that the defendant has the same history as a defendant several times, the crime method is similar to the number of methods from the victim's bank by approaching the victim in the subway, and that the defendant commits the crime of this case in the same kind within a relatively short period after the execution of the punishment is completed, such behavior can be recognized;

Application of Statutes

1. Article applicable to criminal facts;

Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act [Inasmuch as there is a previous criminal record of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes, the execution of punishment was terminated on August 28

[A prosecutor is seeking the forfeiture of evidence No. 16 (Evidence 16) that has been seized, but it is difficult to readily conclude that the defendant provided or attempted to provide the above documents for the instant crime only with the evidence submitted by the prosecutor. Thus, it shall not be separately confiscated.]

The defendant and defense counsel's argument)

1. Summary of the assertion

While recognizing that the Defendant, from the investigative agency to the court, was taking a subway on which the victim was on board at the time of the instant case, the Defendant argued that there was no theft of the victim’s wallet, such as what was written in the facts charged.

2. Determination.

In full view of the following circumstances revealed through the evidence examined by the court, the fact that the defendant steals the victim's wall as stated in the facts charged of this case can be sufficiently recognized, and the defendant's assertion against this is not accepted.

1) The victim was going from the first investigative agency to the court of this case in the direction of the E station from the subway to take off subways from the subways on the day of this case. At that time, in the situation where there are many people in the subway in the outtime subway, a man was left behind that man was shot, and then a man was shot down, and then confirmed that a door was left, and that a door was stored in the E station, and confirmed that a door was left, and that a door was stored in the E station, and a concrete and consistent statement was made.

2) On August 17, 2017, the victim confirmed that he was missing on the day of the instant crime, and reported that he was stolen. On August 17, 2017, the police officer made a statement of the damage situation as above at the time of the investigation of witness. With respect to the increase of male who had been in the subway area at the time, "ice digging was wide, unbrupted and 40 times, she was not able to use ice, and she was in the twits of the test department, without her head, and her head was generally conducted by male, and the 14 photo of the victim, which was registered as the victim before and after the instant crime. The victim was found to have been found to have been found to have been 14 (G) and 10 (10-6) of the victim's photograph, which was found to have been found to have been 6) of the victim's photograph at the time of the victim's statement, but the victim was 16) of the victim's photograph at the victim's body.

3) 당시 CCTV 영상을 보면 피고인이 2017. 8. 11. 18:38:04 E역 상선 6-3에서 신문지를 손에 쥔 채 내리고, 그로부터 얼마 지나지 않은 18:38:27 피해자가 위 6-3에서 내린 점이 확인되고, 피고인은 위와 같이 E역에서 내린 후 에스컬레이터를 타고 올라 갔다가 곧바로 내려와 D역 방향의 지하철을 타고 가다가 D역에서 내리는 등 불과 30분여 만에 수차례에 걸쳐 D역과 E역 사이에서 지하철을 타고 내리는 행위를 반복한 점이 확인된다.

In this regard, the defendant made a vindication to the purport that "I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to go 'I would like to see that I would like to see that I would like to get the CCTV from the investigative agency to this court.'

4) Furthermore, the contents of the instant crime are different from those of the crime committed by the Defendant, which is very similar to the details and methods of the crime already punished, given that the Defendant’s act of committing a retail storage is difficult to secure a witness, and the victim is not aware of the fact that he/she is committed a crime, as he/she is unable to obtain direct evidence of the direct evidence of the crime.

5) Meanwhile, examining the possibility that the victim would have lost the wall at a place other than the date and place of the crime as stated in the facts charged in the instant case, or that it was stolen by a person other than the Defendant, the victim was stolen from the time when the first wall was lost. The victim reported that the victim was stolen from the time when he confirmed that the wall was destroyed. Even thereafter, the victim reported that the wall was stolen from the time when he was removed from the database, and stored the signal in the bank, and then immediately after he got off the subway and then confirmed the loss of the wall later, there is no possibility that the wall was lost at another place because there was a door where the wall was included when the wall was destroyed.

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than 0 but not more than 50 years;

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

[Scope of Recommendation] Basic Field of thth thief (Habitual thief) under the Specific Crimes Aggravated Punishment Act (limited to two to four years of imprisonment)

[Correction of Recommendation Form] Imprisonment with prison labor for not less than three years but not more than four years (the minimum of the recommended punishment prescribed in the sentencing guidelines is lower than the minimum of the statutory penalty, so the sentencing guidelines shall be modified and applied according to the statutory penalty)

3. Determination of sentence;

The following circumstances shall be taken into consideration, and the defendant's age, character and conduct, criminal records, family relationship, family environment, the circumstances and motive leading to the crime of this case, the means and result thereof, and the circumstances before and after the crime of this case shall be determined as ordered by taking into consideration various factors of sentencing as shown in the arguments of this case.

The Defendant had been punished for imprisonment with prison labor for the same kind of crime, and in particular, the instant crime was committed during the period of repeated crime because one year has not yet passed since it completed the termination of the term of punishment for the same kind of crime, and it was committed again during the period of repeated crime. The Defendant denied the instant crime, does not entirely reflect his or her mistake, and does not seem to have an effort to recover from damage.

○ favorable circumstances: The frequency of crimes is only one time, and the amount of damage is not so big.

Judges

The presiding judge, judge and presiding judge;

Judges Man-ho

Judges Han Han-chul

Note tin

1) On August 30, 2013, the Defendant was convicted of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by the Seoul Central District Court (a final and conclusive judgment). On November 26, 2015, the Constitutional Court rendered a decision of unconstitutionality with respect to Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is applicable to the Act by the Constitutional Court, on July 1, 2016, the Defendant was issued a new judgment with regard to habitual

참조조문

-특정범죄 가중처벌 등에 관한 법률

-특정범죄 가중처벌 등에 관한 법률 제5조의4 제6항

-형법 제35조

-형법 제329조

유사 판례

-서울북부지방법원 2015.07.03 2015고단1498

-서울중앙지방법원 2019.10.18 2019고단1921

-서울중앙지방법원 2019.09.06 2019노1852

-부산지방법원 2014.07.04 2014고합200

-서울남부지방법원 2016.11.11 2016고단3203