[1] The meaning of "reconciliation" in the crime of arranging stolen property under Article 362 (2) of the Criminal Code and the requirements for establishing such "reconciliation"

[2] The case holding that even if the defendant, who received a request for sale of precious metal as stolen, knowingly, tried to sell and arrange the precious metal and deliver it to the purchaser, and he was arrested before the delivery of the purchaser, the crime of selling and buying the relevant precious metal is established by mediating the sale and purchase of the relevant precious metal

[1] In the crime of arranging stolen property under Article 362(2) of the Criminal Act, the term “mediation” means mediating, or facilitating convenience among the parties who intend to acquire, transfer, transport, or store stolen property. Therefore, in a case where, even though a contract on the acquisition, transfer, transport, or storage of stolen property is not concluded between the parties who intend to acquire, transfer, transport, or store stolen property while being aware of the fact that it is an stolen property, if an act of arranging, or promoting convenience in the acquisition, transfer, transport, or storage of stolen property by linking each other, the act of arranging stolen property is established.

[2] The case holding that even if the defendant, who received a request for sale of precious metal as stolen, knowingly, tried to sell and arrange the precious metal and deliver it to the purchaser, and he was arrested before maturity, the crime of selling and buying the relevant precious metal is established by mediating the sale and purchase of the relevant precious metal.

[1] Article 362 (2) of the Criminal Code / [2] Article 362 (2) of the Criminal Code

Defendant

Defendant

Korea Legal Aid Corporation, public-service advocates Kim Jong-hwan

Daegu District Court Decision 2008No3550 Decided January 20, 2009

The appeal is dismissed. 90 days out of detention days after the appeal shall be included in the original sentence.

The defendant and defense counsel's grounds of appeal are also examined.

1. As to the ground of appeal on the conciliation of stolen property

A. In a case where the appellate court ex officio examines the grounds that are not included in the grounds for appeal and reverses the judgment of the first instance and rendering a new judgment, even if there was no separate judgment as to the legitimacy of the grounds for appeal cited by the appellant, it shall be deemed that the appellate court has already judged the legitimacy of the grounds for appeal in its self-determination. Thus, the appellate court did not separately state the judgment on the grounds for appeal by the defendant (see, e.g., Supreme Court Decisions 83Do2827, Dec. 27, 1983; 2005Do4177, Jun. 27, 2006).

According to the records, the court below erred by omitting the judgment of the court of first instance on the ground that there was an omission of the grounds for necessary mitigation in the judgment of the court of first instance, and thus, it cannot be said that the court below erred by omitting judgment on the ground that the court below did not separately explain the legitimacy of the grounds for appeal claiming innocence as to the act of mediating stolen goods.

B. In the crime of arranging stolen goods under Article 362(2) of the Criminal Act, the term “mediation” means mediating or facilitating convenience among the parties who intend to acquire, transfer, transport, or store stolen goods. Thus, in a case where, even though a contract on the acquisition, transfer, transport, or storage of stolen goods is not concluded between the parties who intend to acquire, transfer, transport, or store stolen goods while being aware of the fact that the stolen goods are stolen, if an act of arranging or promoting convenience in the acquisition, transfer, transport, or storage of stolen goods is performed by linking each other between them, the crime of arranging stolen goods is established.

According to the evidence duly examined by the lower court and the lower court, etc., ① received a request from the co-defendant 2 of the lower court and the co-defendant 3 of the lower court to sell precious metal in an amount equivalent to KRW 4.67,00,00, which he stolen from them, at the time and place of the lower court’s judgment; ② the Defendant, despite being aware of the fact that the said precious metal was stolen, sent to the Nonindicted Party who accepted the said demand and agreed to purchase the said precious metal, and promised to do so in the singing practice room as indicated in the lower judgment by the Defendant and the said Non-Indicted Party; ③ the Defendant entered the singing practice room as indicated in the lower judgment with a dried precious metal received from the Co-defendant 2 of the lower court and the co-defendant 3 of the lower court, and was arrested by the police officer who was tracking the Defendant

In light of the above legal principles, the crime of arranging stolen goods is established by connecting the sales of precious metal to the above joint defendants 2 and the above non-indicted 3 of the court below's order to sell precious metal as stolen goods and mediating the sales of such precious metal. The crime of arranging stolen goods is not established, even if the sales contract was not actually concluded between the above joint defendants 2, the co-defendant 3 of the court below and the above non-indicted 3 of the court below's order, or even if the possession of the said precious metal was not transferred to the above non-indicted

Although the court below did not clearly state the reasons, it is just to determine that the defendant constitutes the crime of aiding and abetting stolen property, and there is no error in the misapprehension of legal principles as to the time of establishment of the crime of aiding and abetting stolen property as alleged in the grounds of appeal

2. As to the ground of appeal on the larceny aiding and abetting

The gist of the grounds of appeal as to larceny is that the court below erred in selecting evidence or finding facts which belong to the exclusive jurisdiction of the court below, and the court below did not err in violating the rules of evidence as otherwise alleged in the grounds of appeal. Thus, the above ground of appeal cannot be a legitimate ground of appeal.

3. Conclusion

Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)