(영문) 대전고등법원 2019.12.27. 선고 2019노331 판결

Seized evidence Nos. 5 through 9, 11, 18, 19, 30, 32, 33, 35, 40, 41, 42, 65, and 67 shall be forfeited from Defendant B, and evidence Nos. 45, 53, 55, 59, 61, 62, and 64 shall be forfeited from Defendant A, respectively.

2,507,250 won shall be additionally collected from Defendant B.

Defendant B shall be ordered to pay the amount equivalent to the above additional collection charge.

Reasons

1. Summary of the grounds for appeal;

A. Defendant B

1) Mental disorders

At the time of each of the crimes in this case (the crime of robbery against victims E is referred to as "the crime of Western," and each of the crimes 2) was referred to as "each of the crimes in this case", the defendant had weak intent or ability to discern things due to the tides at the time of the crime.

2) Unreasonable sentencing

Imprisonment with prison labor declared by the court below is too unreasonable.

B. Defendant A

1) misunderstanding of facts or misapprehension of legal principles

A) Forced act (as to all of the crimes after Seocheon and Seocheon-cheon crimes)

The Defendant was threatened by the Party B to report the illegal horse business operated by the Defendant, and the Party B did not expect that the Party B actually murdered E (B) and did not seem to have been formally planned to commit a crime. Since then, at the scene of the Seocheoncheon, B was merely involved in the commission of the act of drinking and drinking and drinking, and each crime committed after the Seocheoncheon was also attempted to kill the Defendant, thereby helping the Defendant to commit the act of aiding and abetting the Defendant. Accordingly, all these acts are not punished because they constitute coercion under Article 12 of the Criminal Act.

B) The absence of a criminal intent to commit robbery and aiding and abetting the robbery constitutes a crime (as to the crime of Western)

Even though the defendant's act does not constitute a criminal act forced, it is only an aiding and abetting crime in light of all the circumstances, where the defendant was involved in the crime after the knife knife knife knife knife knife knife knife knife knife knife.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant A (30 years of imprisonment) is too unreasonable.

1) As to Defendant B

A) misunderstanding of facts or misunderstanding of legal principles

Although the Defendant and A constitute a co-principal, the lower court erred by misapprehending the legal principles that judged each crime as a sole principal of the Defendant on the grounds that the functional control of each crime is not recognized with respect to each crime after the Seocheon-cheon.

B) Unreasonable sentencing

The sentence against the defendant by the court below is too uneasible.

2) As to Defendant A

A) misunderstanding of facts or misunderstanding of legal principles [each of the crimes committed after Seocheon of the original judgment]

The following circumstances, namely, ① the Defendant conspired to continue to commit robbery while participating in the commission of the crime with B prior to committing the crime, ② the Defendant moved to the implementation of the crime plan with B by committing the crime, ③ the Defendant stated in the future plan immediately after committing the crime and discussed the specific method of the crime, ③ the Defendant instructed or informed the Defendant of the detailed method of the crime, ④ the Defendant is unable to report even if he/she engages in the illegal business for his/her employees, ④ it is difficult for them to have witness even if he/she had committed the crime for the illegal business, ③ it is difficult for them to use them as witnesses, and there is a large number of cash, ② the Defendant was urged to continuously stop the robbery of female employees at one-person M&C, and the Defendant was urged to use them on his/her Internet site to purchase them by using the link or to use them, ⑤ The Defendant was urged to use them on his/her own in the process of committing the crime under the direction of 200,000).

B) Unreasonable sentencing

The punishment sentenced by the court below (30 years of imprisonment) is too unhued and unfair.

2. Judgment on Defendant A

A. Determination on Defendant A’s grounds for appeal

1) The assertion that it constitutes an act forced.

The defendant asserted the same purport in the court below, and the court below rejected the defendant's assertion on the grounds that the defendant's act of committing each of the crimes of this case cannot be punished as "act forced" in full view of the circumstances as stated in its reasoning, which can be acknowledged by the evidence duly adopted and investigated by the court below (Article 21 to 25 of the judgment of the court below).

In addition to the circumstances properly explained by the court below, the following circumstances acknowledged by the evidence duly adopted and investigated by the court below: (i) B testified that the defendant's home address at the court below; (ii) B testified that there was an accomplice at the time of the police investigation immediately after arrest; (iii) the defendant also stated that B was not aware of the defendant's home (Evidence No. 866 of the record No. 866 of the record); and (iv) the defendant stated that B was involved in the crime at the investigative agency after being investigated on several occasions; (iii) although B made a statement to the effect that it was not a witness at the time of the police investigation; and (iv) the defendant made a statement to the effect that B was not involved in the crime by making a report on illegal horse business or by making a report on business interference; and (v) the judgment of the court below or the judgment of the court below did not contain any error of law by misunderstanding the legal principles as alleged in the ground of appeal.

This part of the defendant's assertion is not accepted.

2) The assertion that the crime constitutes a crime of aiding and abetting and aiding and abetting, which is robbery of the robbery

A) The judgment of the court below

In light of the legal principles pertaining to B’s crime of murder (see, e.g., Supreme Court Decision 2008Do9867, Feb. 26, 2009) and the legal principles pertaining to the establishment of joint principal offenders under Article 30 of the Criminal Act (see, e.g., Supreme Court Decisions 2012Do13173, Feb. 26, 2015; 2010Do11030, Jan. 27, 201), the lower court determined that the Defendant, who had been aware of the inherent crime of murder, contributed to or was unable to commit the crime under Article 26 through the evidence duly adopted and investigated by the lower court, was not aware that (i) the Defendant had contributed to or was aware that he had contributed to the crime of murder, and (ii) the Defendant could not be aware that he had prepared to commit the crime of murder with a specific method of informing the victim of the victim’s complaint against the victim, and (iii) the Defendant could not be aware that he had prepared to commit the crime of murder.

B) The judgment of this Court

The court below appropriately explained the following facts and circumstances, which are acknowledged by evidence duly adopted and investigated by the court below and the court below, i.e., ① there is no circumstance to see that the defendant was involved in the crime by intimidation from B; ② the defendant sent a link to the related site so that he could purchase tools by informing B of the method of committing robbery in detail; ② the defendant purchased tools used in the crime by robbery; ③ the victim E using such tools; ③ the victim E house was entered into the victim E house and the victim was knifeed with Cheong tape and the defendant got into the victim E house; ② the defendant did not appear to have been aware of the possibility of interference with the crime in addition to the victim E house; ② the defendant did not appear to have known the victim E's right to purchase evidence in advance, and the defendant did not appear to have been aware of the possibility of interference with the crime in addition to the fact that the defendant did not appear to have been aware of the fact that there was no error of law by informing the victim E of the fact that he did not appear to have been aware of the possibility of interference with the crime.

This part of the defendant's assertion is not accepted.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

1) Summary of this part of the facts charged

The following crimes are listed in paragraph (1).

2) The judgment of the court below

According to the evidence duly adopted and examined by the court below, in light of the legal principles as to co-principal offenses (see, e.g., Supreme Court Decision 2018Do7658, Sept. 13, 2018), the court below found the defendant guilty only for the crime of aiding and abetting and aiding and abetting and aiding and abetting and aiding and abetting the victim W, the crime of aiding and abetting and aiding and abetting the victim AB, and the crime of aiding and abetting and aiding and abetting the victim AC, and the crime of aiding and abetting and aiding and abetting the victim AB and the crime of aiding and abetting and abetting the victim AC, not guilty as to the crime of aiding and abetting and abetting and aiding and abetting the victim, and as to the crime of aiding and abetting the victim AB, the court below found the defendant guilty as to the crime of aiding and abetting and abetting and aiding and abetting the victim, the crime of aiding and abetting and abetting and aiding and abetting the victim as the attempted crime, and the robbery of the victim AB as the victim.

3) The judgment of this Court

A) Relevant legal principles

Joint principal offenders under Article 30 of the Criminal Act are established by satisfying the subjective and objective requirements, which relate to the implementation of a crime through functional control over a criminal act by intent of joint processing and its common intent. A person who does not directly share the constituent elements among the conspiracys may be liable for the so-called crime as a joint principal offender depending on whether they meet the aforementioned requirements. In order for a conspiracy to be recognized as a joint principal offender by sharing the constituent elements directly, the person’s position and role in the entire crime, control over the progress of the crime, and bad faith, etc., are not merely a mere conspiracy, but also a functional control over the crime by essential contribution to the crime should be acknowledged. In the case of a joint principal offender, the number of participants and their inclinations, the time and place of the crime, the possibility of contact with others during the process of the crime, and anticipated reaction with others, even if there is no possibility that the two or more conspiracys would have been made by either an implied criminal intent or an incidental crime, it should not be deemed that there is sufficient evidence to establish such a collective principal relationship with others, even if there is no reasonable likelihood of such a specific criminal act.

B) Recognized facts

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, the following facts may be recognized.

(1) Relationship between the Defendant and B, planning of and participation in the crime

B From around September 2018, the Defendant started to engage in one business trip against the same-sexs under Defendant B, and around October 2018, the Defendant first called the Seocho-gu Seoul D's 1stmponsed the Defendant’s body, and then, the Defendant came to be aware of the Defendant’s sexual abuse with his father E at the time of her first arrival, his mother’s divorce, and her mother’s mother and her mother had sexual intercourse with another male (E). The Defendant was sent to B (E) 1, the father of the Republic of Korea, 200, and the 1stmponsed the Defendant’s body, and the 1stmponsed the Defendant’s body, and the 1stmponsed the Defendant’s body, 2ndphered the Defendant’s death.

Since then, the Defendant conspired with B to murdered the victim E and took the credit card, cash, etc. in the name of the victim E by using the criminal tool prepared as stated in the part of the "criminal facts in the judgment of the court below".

(2) A plan to commit an additional crime after the commission of the

피고인은 서천 범행 이후인 2018. 12. 31. 01:12경 친부모님이 억울하게 돌아가셨는데, 애미년도 그 식구들도 다 그 새끼 편인데, 네가 애미년에게 연민을 조금이라도 가짐 천벌 받는 불효, 5), 같은 날 01:15경 「그것까지 완벽해야 진정한 네 친부모님의 아들이고, 진정한 영웅 킬러가 되는 법, 말만 일체유심조가 아닌 뼛속까지 일체유심조의 길을 걷도록. 이제 네 친부모님과 너와 네 동생들 그리고 형만 생각해. 모든 연민? 그거 다 쑈야」, 2019. 1. 1. 20:19경 「가짜인거 확실하니 이젠 그런 말하지 말고 킬러연습만」 등 지속적으로 H 메시지로 B의 부모가 친부모가 아니라는 사실을 주지시키고, B에게 그의 어머니도 살해하여야 한다고 계속 부추겼다.

In addition, B’s mother, from the preparatory train to drink beverages mixed with water exemption, B, from December 30, 2018, around 19:52, juices, juices, and ammunition beverages are produced at convenience stores, and 5 juices are tested for each drinking water before they enter the 19:57, and how they can be potable. how we can see how we can see how we can see how we can see what beverages are exempted from water, and how we can see how we can see that we can see how we can see that we can see that we can see how we can see that we can see that we can see to 0 if you can see that we can see that we can see that we can see to see how we can see to see that we can see to see how we can see to see. B, we can see to see that we can see to see that we can see to see how we can see it.

(3) Invitation and commission of each crime after the Seocheon crime

On December 31, 2018, the Defendant: (a) around 01:18, 201, on December 31, 2018, the Defendant: (b) sent a site link to which he/she can purchase a Ho-credit gas gun; (c) ordered B to purchase a Ho-credit frame by sending it to the site link that he/she could purchase the Ho-credit gas gun; (d) around that time, B purchased a Ho-credit frame and a Ssi-si-si one further through the website link sent by the Defendant.

On January 1, 2019, at around 19:09, the Defendant sent to B a message to the effect that he gets her to murder with a person living together, or sent a message to the general public that "on January 2, 2019, when he/she could easily commit a crime, he/she would inform him/her of the relevant information when he/she could commit a crime," and ordered him/her to commit a robbery against the general public (other persons than his/her family members). On this basis, whether the suicide of non-criminals would grow up? And the Defendant is Geman Geman, the Defendant, rather than the illegal persons in Gangnam, and encourage him/her to engage in a pact alone while prohibiting him/her to engage in a pact alone.

However, at around 11:46 on January 2, 2019, the Defendant and B died of the Victim E from the mother of “B.” After contact, the Defendant came to know of the occurrence of the commission of the Scheon, the Defendant sent a link to the Internet site of “R”, which is an Internet site capable of searching for the Ethmbling, the residence of “B” and “B”, and ordered B to commit the commission of robbery to collect money as soon as possible at the time of money. The Defendant committed the commission of robbery in order to collect money as soon as possible, while not being arrested at the time of money. On the other hand, on January 2, 2019, the Defendant sent a link to B, which is the object of the commission of the crime. The details and circumstances leading up to the crime committed after B, are as follows.

① B은 피고인의 지시에 따라 피고인이 보내 준 위 'R' 사이트를 통하여 판시 범죄사실 '(이후 범행】 제1의 가.항' 기재와 같이 피해자 S이 운영하는 'T' 마사지샵을 범행 대상으로 정하여 2009. 1. 2. 22:10경 범행을 하려고 하였으나, 공간이 협소하다고 판단하여 실행에 착수하지 못하고 실패하였다. 피고인은 B으로부터 범행에 실패하였다는 이야기를 들은 후인 2019. 1. 2. 22:14경 「지금 가릴 때가 아닌데 아깝군. 하루가 급해. 진입이 쉬운 거라 칼 들고 위협하면 바로 꼬랑지인데. 아깝네, 거기면 돈 좀 있을 텐데」라고 B을 나무랐다. 이후 피고인은 2019. 1. 3. 05:01 경 형이 생각해보니 너는 때리고 시작해야 흥분도가 높으니 들어가서 스프레이 뿌리고 쭉빵 날리고 바로 칼 위협하면서 입 테이프 하고, 그 다음 손 발 봉쇄하고 비번 물어보고 쇼크 걸면 될 듯. 일단 스프레이 성능이 너무 좋아서 눈을 멀게 하니 거기서 1차 안심, 쭉빵날리면 2차 안심, 거기에 사시미 위협하니 3차 안심 트리플 안심으로 가면 완벽히 할 듯」이라고 하거나, 2019. 1. 3. 08:09경에는 (호신용 스프레이를) 눈에다 뿌리고, 배 때리고, (카드 비밀번호를) 알아내고 목 조르기, 휴대폰 챙길 필요 없이 전원 끄고 화장실 변기에 넣으면 누구도 모르고 하루면 변식되어서 그냥 망가짐」이라고 메시지를 보내는 등으로 B에게 다음 범행에는 미리 구입해 놓았던 호신용 스프레이를 이용하여 제압한 뒤 범행을 하라고 지시하였다.

② Around 09:57 on Jan. 3, 2019, B reported to the Defendant that he/she had made a promise to take-off at the relevant Washington, as stated in the above RR site, on the charge of the crime (e.g., 'Y' operated by the victim AJ', and reported to the Defendant that he/she was killed in committing a crime at around 13:48 on the same day. At around 14:18 on the same day, the Defendant reported that he/she was killed in committing a crime from B, and on the same day at around 14:31 on the same day, he/she continued to move the Defendant to the self-denunciation of Incheon.

③ Around January 1, 2019, B moved to the jurisdiction of Incheon for an additional crime, using the aforesaid “RR site,” and attempted to commit the crime on January 4, 2019. However, unlike anticipated, the person subject to the crime committed with B, gave up suspicions, and reported the fact to the Defendant. On January 4, 2019, B entered the scene of the crime, but the Defendant did not have to go back to the door “self-denunciation” or “self-denunciation, if you continue to enter the scene of the crime,” and the Defendant did not have to go back to the door “self-denunciation,” regardless of how much the risk of breaking out or going back to the door, if you start to the door,” and the Defendant did not go back to the door “self-denunciation,” if you start to the door, if you move to the door, if you move to the door, if you move to the door, if you move to the door, if you move to the door, if you want to see.

④ On January 4, 2019, B, using the aforementioned “R” website, black up the object of the crime, but failed to select the object of the crime. The Defendant directed B to color the object of the crime by returning to the surrounding apartment complex or loan, and B returned to the surrounding area in accordance with the Defendant’s direction, and black up the object of the crime. B returned to the surrounding area on January 5, 2019. Around 03:48, 2019, he reported B that the Defendant failed to proceed to commit the crime while serving the surrounding area over the Defendant, and the Defendant was bound to participate in the crime. On January 5, 2019, at around 04:05, the Defendant sent a news about the strength of convenience points, sent it without being aware of this convenience point, and carried it with B’s intention to raise money without being able to attract money.

As above, the Defendant continued to commit a crime against one person using the “R” website in Incheon, and sent H message, around January 5, 2019, to B, ordering the mixed female or the elderly to commit a crime as follows, at around 13:00.

2019. 1. 5. 13:00경부터 H 대화 내용피고인 : 형님이 잠 안자고 곰곰이 생각해보니 안전빵으로 두 번은 그냥 생각 없이 보자마자 칼로 위협과 동시에 바로 허벅지 1킬과 동시에 입 막고 바로 테이핑하고 비번물어보고 챙기고 바로 쑤시고 죽이고 2분 안에 끝내고 휴대폰 변기에 버리지 말고 그 년 충전기 꼽고 나오기. 킨 상태로, 3번부터는 위협해서 찌르지 말고 한손엔 칼 한손으론 위협하면서 테이프 잘 붙으니 한손으로 테이핑하고 그 다음 폰 비번부터 물어보고 카드 비번 물어보고 다 확인되면 휴대폰도 챙겨. 이유는 너 휴대폰이 언제 추적될지 모르니 대포용도로 사용.B: 노래방을 그렇게 하라는 애기죠?피고인 : 오피스텔부터 시간 많으니 여주인일 확률이 낮으니 오피스텔부터, 빌라나 아파트,B: 그 노인들 사는 오피스텔피고인 : 노인이든 여자든 가리지 말고 좆밥 같이 보이면 고고, 성인 남자는 안 되고,B: 왜요?피고인 : 남자는 할아버지만 가능. 왜냐 그 사람이 말라보여도 남자는 반항하거든.B: 일단 두 번은 오피스텔로? 그리고 부산으로?피고인 : 3번 이상하고 부산.

From January 5, 2019: H conversation contentB from 13:25 on January 13: 2019: Neman, content has been adjusted and understood. The defendant's last question, threat, and the starting from the start of the house after entering the house: The defendant's response. If you enter the knife at the same time as the knife and close, at the same time the knife is closed, the knife shall not be opened, and the knife shall not be opened in the outside of the building because the knife is doubtful of the people, and the knife may not be opened.B: When considering the gnifebbbbbing, the defendant's entrance will continue to unfold if you want to do so. If you want to do so: the defendant's response, whether you will see or enter the knife on the floor, if you wish to do so, it would be difficult to see or see the age of the defendant's.

B reported on January 14, 2019, immediately after receiving the above Defendant’s order, that the Defendant was committing the crime, around 14:00, and then, the elderly victim AB (the elderly victim) went into the house after having her her her her her her her her her her her her her her her her her and her her her her her her her her her her hers hers hers her and her her hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers hers her and her her her her hers hers her hers hers hers hers hers hers her hers her hers hers her her hers her.

⑤ On January 5, 2019, after the Defendant arrived at Busan, on January 22 and 22, 2019, the Defendant demanded that B send a credit card signed by the said victims AB and AC, and that B sent a photograph of the said victims’ credit card. After receiving the said photograph, the Defendant sent the Defendant the following H message to B. After purchasing cultural products rights and gold papers using the credit card in the victim E’s name, which was taken place from the victim E after committing the instant crime, the Defendant instructed B to purchase cultural products rights and gold papers from the victim E and resell them and resell them with the same way as the resale them. On the other hand, the Defendant instructed B and AC to purchase cultural products and resell them by using the credit card in the victim’s name, etc.

From January 5, 2019, from around 23:3:36 on January 23, 2019, the Defendant of H dialogue: from around 23:36, a food accident if AH takes place, and the AG Tran company: two food products? The Defendant: DT : When DT drinks, Boe-franc company’s shot, name, literature, and the remainder are being kept and potable. The date of temporary payment until Bolih’s straw falls and AG falls.B : The Defendant complies with DT ? the Defendant.

B around January 6, 2019, around 13:17, 2019, the Defendant disposed of gold Bans owned by the victim AB in KRW 365,00, and reported that the Defendant purchased necessary goods, such as clothes, garments, and shoes, and demanded that the above site link be sent back. B demanded that the Defendant be sent back the above site links. However, after receiving the above site links from the Defendant, the Defendant was able to ask the Defendant for the crime and contact after committing the crime. However, the crime after the judgment, as described in Article 1(d) of the Criminal Act, was determined as the object of the crime by AJ, and was arrested while committing the crime.

C) Specific determination

Based on the above legal doctrine, comprehensively taking account of the above recognized facts and the following circumstances, even though the Defendant had to constitute each crime after the Seocheon,

Even if the defendant did not directly share and implement a dry act, considering the relationship between the defendant and B, the content of the crime planned by the defendant, and the status, role, control, and influence of the defendant in each crime after the Seocheon, the defendant has a functional control over each crime through essential contribution after the Seocheon.

On the other hand, Supreme Court Decision 2018Do7658 Decided September 13, 2018, cited by the court below, that "it is impossible to establish a joint principal offender with respect to murder of one criminal defendant in the absence of circumstances where the defendants who had no awareness from the online community have gathered a specific crime plan." The defendant planned an additional crime immediately after committing robbery with B, and specifically recruited and instructed the method of coloring the subject of the crime, the method of reaching the place of the crime, the method of killing and taking money, the method of concealing the trace after the crime, and the method of concealing the trace after the crime. It cannot be said that the case was the same as the case in which physical color and selection of the subject of the crime, and the process of the crime are reported in real time by B (each crime after the crime).

Unlike the above, the defendant's act constitutes aiding and abetting each crime after the Seocheon.

The judgment of the court below is hard to accept, and the prosecutor's allegation pointing this out is with merit.

(1) Relationship B with the Defendant

① B은 피고인으로부터 '누구를 만나고 있는지, 밥을 먹는지, 빨래를 하는지 등 사소한 것부터 생활에 관한 모든 상황을 보고하라'는 지시를 받고 피고인에게 모든 상황을 습관적으로 보고하는 등 서천 범행을 계획하기 전부터 피고인의 지시에 순응하여 왔던 것으로 보이는 점, ② B이 피고인으로부터 들은 "친아버지가 아닌 것 같다, 나라면 아버지를 죽였을 것이다."라거나 'B의 친아버지는 B이 어릴 때 사망하였고 B의 친아버지가 아닌 피해자 E이 아버지인 양 행세하며 지금까지 살아왔던 것이기 때문에 '집사'에 불과한 피해자 E을 죽여야 한다'는 허무맹랑한 이야기까지 믿는 모습을 보이고, 실제로 피해자 E을 살해하기까지 한 점, ③ 피고인은 B이 피해자 E을 살해할 의사를 보이자, B에게 자신을 살인 방법 전문기술을 가지고 있는 전문 킬러인 것처럼 말하기도 한 점(증거기록 제1권, 856쪽), ④ B이 서천 범행 직후 피고인에게 ① 2018. 12. 29. 12:58경 근데 그 새끼(피해자 E을 뜻한다) 가짜면 상관없는데 만약 진짜(아버지)면 어째죠?」, ㉡ 2018.12.29, 13:43경 「그 새끼 디엔에이 채취해서 의뢰해볼걸」, ㉢ 2018. 12. 30. 20:02경 「나도 친부모님 살아계셨으면 지금보다 더 많이 다듬어지고 갖춘 모습일 텐데. 팩트는 내가 악의 뿌리를 제거하고 형과 같이 그리고 우리 후손들이 악순환이 반복되지 않도록 잘 교통정리 해놔야지 라는 등의 H 메시지를 지속적으로 보내고, 피고인은 B에게 지속적으로 피해자 E이 친아버지가 아니라는 사실을 주지시켰던 점, ④ 피고인은 B에게 수사기관에 검거되면 공범인 피고인에 대하여 말하지 말라는 지시를 하였고, B은 실제로 검거된 직후에는 공범이 있다고 하면서도 누구인지에 대하여는 진술하기를 거부하기도 하였던 점, ⑤ B이 서천 범행 이후 각 범행을 행하면서 범행 전후로 피고인에게 실시간으로 보고하고 피고인의 조언을 구하거나, 추가적인 범행을 포기하려는 의사를 가질 때마다 피고인의 독려 및 지시로 인하여 다시금 범행에 나아가는 모습을 보인 점 등을 고려하면, B이 이 사건 각 범행의 전 과정에서 피고인을 전적으로 신뢰하고, 정신적으로 상당히 의지하여 왔던 것으로 보인다(B은 수사기관에서 피고인을 무시하는 진술을 하거나 서천 범행을 하는 과정에서 피고인이 취한 행동에 비추어 피고인이 살인 범행을 해본 적이 없는 것 같고, 서천 범행 이후 각 범행에 관하여 피고인이 알려준 범행 방법 등이 실제 범행에 있어 별로 도움이 되지 않았다고 진술하기도 하였으나, 이는 ① 피고인이 수사기관에 검거된 이후 이 사건 각 범행에 대하여 부인하는 태도를 취하자 B이 피고인에 대한 적대적인 태도를 보이면서 피고인을 무시하는 발언을 하기 시작한 점, Ⓒ 서천 범행 이후 B이 피고인과 나눈 H메시지의 내용에 비추어 보면 오히려 서천 범행 이후 각 범행을 행할 때마다 피고인에게 자세히 보고하고, 피고인의 조언을 받는 등 H 메시지 상에 현출되는 B의 피고인에 대한 태도나 어투 등에 비추어 보면, 피고인이 이 사건 각 범행에 있어서 도움이 되지 않았다는 B의 위 진술을 곧이곧대로 믿기는 어렵다고 할 것이다).

(2) Specific plans and preparations for each crime after the commission of Western.

After committing the crimes of B and west, the Defendant came to be able to kill the her mother of B with her knife, her knife with her knife with her knife with her death, her knife with her hand, and her knife with her hand, and her knife with her hand, followed the Defendant’s proposal to murder. In the process of her mother, the Defendant instructed B to conduct an experiment to realize her method of committing the crime, and had it purchased her knife with an abstract advice (However, the Defendant’s and B’s plan for committing the crime was called from her mother to her death, and was not actually carried out since her knife thought that her death was

(3) The principal offender for each crime committed after Seocheon was committed.

① The fact that the Defendant could be selected as the object of committing the crime of women or the elderly and the elderly operating a single W-W-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-Sing-S-Sing-Sing-Sing

고 하자 피고인이 이를 만류하면서 위와 같은 범행 대상을 물색하라고 지시하였는바, 피고인의 지시가 없었다면 B 스스로 서천 범행 이후 각 범행과 같은 범행을 계획하지 못하였을 것으로 보인다), ② 피고인은 수사기관에서 B에게 1인 마사지샵을 검색할 수 있는 'R' 사이트 링크를 보내준 것에 대하여 '피해자 E의 카드 사용이 불가능해지고, 서천 범행이 발각된 것 같아 도피자금을 마련하게 도와주기 위해서 알려준 것이고, 마사지 여성들이 불법을 하는 것이라서 신고도 잘 이루어지지 않을 것 같아서 범행 대상으로 삼으라고 알려준 것이다'라고 진술한 점(증거기록 2권 782쪽), ③ 피고인은 B에게 호신용 스프레이를 구입할 수 있는 인터넷 사이트 링크를 보내주어, B이 위 사이트를 통하여 호신용 스프레이를 구입하였고, 피해자 S에 대한 범행이 실패하자 호신용 스프레이를 이용하여 피해자를 제압하라거나, ① 엘리베이터 같은 곳에는 CCTV가 있을 수 있으니 계단으로 이동하고, 비니, 마스크를 쓰고 계단으로 이동하라거나, Ⓒ 범행을 통해 강취한 휴대폰이나 신분증 같은 것은 지하철역 쓰레기통에 버리라는 등으로 범행 장소로 이동하는 방법, 피해자를 제압하는 범행 수법, 범행 후 취득한 물건을 처리하는 방법 등에 대하여 상당히 구체적으로 지시한 점, ④ 실제로 B은 피고인의 위와 같은 지시에 따라 CCTV에 촬영되는 것을 피하기 위해 계단을 이용하고 비니나 마스크를 쓰고 범행 장소로 이동하고, 피해자 W에 대한 범행에서 호신용 스프레이를 위 피해자의 얼굴에 뿌려 제압을 시도하고, 피해자 AB, AC에 대한 강도살인 범행으로 취득한 위 피해자들의 신분증을 피고인의 지시대로 가위로 잘라 인천 지하철역 화장실 쓰레기통에 버리는 등(증거기록 2권 제500쪽) 피고인의 지시에 따라 범행을 수행하였던 점, ⑤ B은 범행 대상을 물색한 뒤 범행 대상을 선정한 사실, 범행 직전 범행에 나아갈 것이라는 사실, 범행 직후 범행 경위 즉 범행에 실패하였다면 왜 실패하게 된 것인지, 범행에 성공하였다면 어떠한 방식으로 범행을 실행하였는지 등에 관하여 실시간으로 보고하였고, 피고인은 범행에 실패한 경우 구체적으로 왜 실패에 이르게 된 것인지, 다음 범행에서는 실패하지 않기 위해 어떠한 행동이 필요한 것인지 구체적으로 지시하여 왔던 점, ⑥ 피고인은 B이 범행에 실패하여 추가적인 범행을 포기하거나, 자수 의사를 내비칠 떄마다 오히려 '이제 와서 자수하면 아무것도 이룰 수 없다'는 식으로 자수를 만류하고, 추가적인 범행을 지시하여 왔던 점, ⑦ 그 밖에 피고인이 B과 서천 범행 전후로 한 H 메시지의 내용에 비추어 보면, 피고인의 주장과 같이 형식적으로 도와주는 척을 한 것이라거나 누구나 제공할 수 있는 정보를 주었을 뿐이라고 보기 어렵고, 오히려 피고인이 적극적으로 범행 정보를 제공하고, 주도적으로 B의 범행을 지시하고 있는 것으로 보이는 점[B은 피고인이 지시한 범행 순서, 방법을 잊지 않고 그대로 실행하기 위하여 직접 메모한 뒤 이를 소지하고 다녔다(증거기록 3권, 제1626, 1627쪽)] 등을 종합하면, 피고인의 행위가 단순한 공모자의 행위에 그치는 것이 아니라 서천 범행 이후 각 범행에 관하여 본질적 기여를 통한 기능적 행위지배로 평가할만하다.

(4) The criminal intent of robbery

As seen earlier, in collusion with B, the Defendant continued to contact with B, immediately after committing robbery against B in the course of committing robbery, and continued to meet specific plans for committing further robbery, the Defendant may be deemed to have participated in the crime by taking advantage of B’s act while recognizing that B was to commit further robbery. As such, the Defendant also ought to be recognized as committing robbery against B and AC (whether the Defendant was aware of the fact that B actually attempted to commit robbery at an investigative agency in the course of attempted robbery) (No. 1576, 1577 of the evidence record).

3. Judgment on Defendant B

A. Judgment as to the defendant's mental disability claim

In the lower court’s argument that the Defendant had the same reasoning as that of this part of the appeal, and the lower court determined that the Defendant did not seem to have a state of weak ability or decision-making ability to discern things at the time of each of the instant crimes, taking full account of the following: (a) although it is recognized that the Defendant was diagnosed as a mental health doctor from around 2012 to October 2018 as having received diagnosis and treatment, (b) 'consceptic mental disorder', 'unsceptic mental disorder', 'unsceptic personality disorder', and 's dissceptic personality disorder', (c) according to the notice of the result of the mental diagnosis of the Medical Treatment and Custody Director, and (d) presented the opinion that there was no influence of mental illness in the process of carrying out the instant crimes, and (e) taking into account the preparation and process of each of the instant crimes, and the details of the instant crimes.

In light of the records, a thorough examination of the reasoning of the judgment of the court below is reasonable, and there is no error of law by misunderstanding the legal principles on mental disability.

This part of the defendant's assertion is without merit.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

As seen above, as seen in the judgment on Defendant A, the part of the facts constituting the crime in the judgment of the court below (excluding the part of fraud by using debit cards under the name of the defendant AB and the part of the violation of the Specialized Credit Financial Business Act) is erroneous or erroneous in the misapprehension of the legal principles by the prosecutor that the defendant and A co-principal

4. Conclusion

Therefore, among the judgment of the court below against the Defendants of the prosecutor, the appeal on each part of the crime is with merit, and the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the judgment below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided as follows. The judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the judgment of the court below is reversed and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts of the crime recognized by this court and the summary of the evidence are as follows, except for adding "the first instance court statement (limited to the defendant A) of the witness B to all the "the summary of the evidence" as follows, and "the summary of the evidence" in the facts of the crime in the judgment of the court below, so it is identical to each corresponding column of the judgment of the court below (including attached list 1, 2). Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

[Ex Post Facto Crime]

1. Joint crimes committed by the Defendants

(a) Preparation for murdering with victims S around January 2, 2019;

After killing E as above, the Defendants discussed the plan for the future crime and the plan for financing of the escape fund, and Defendant A conspired to murder and take money and valuables from Defendant B, stating that “I would live in the future as to whether I would continue to commit the robbery, I would like to commit the robbery in the future,” “I would like to commit the crime of continuous robbery (as to Defendant B’s mother), I would like to gather money from Defendant B, “I would like to commit the crime of continuous robbery (as to Defendant B’s mother), I would like to commit the crime of continuous robbery, and I would like to kill the female employees or the elderly and the elderly who could easily control them.” In response to the above proposals, Defendant B proposed to the effect that “I would like to take money and valuables by committing the crime of continuous robbery.”

Meanwhile, around December 30, 2018, around December 31, 2018, around 31, and around January 1, 2019, Defendant A demanded Defendant B to promptly resume the commission of robbery by sending H message. On January 2, 2019, Defendant B sent a link to Defendant B with the address of “R,” which is an Internet site for searching for H message-sprinking, and ordered Defendant B to continue the commission of robbery by checking the subject of the commission of the crime.

In accordance with the above conspiracys and criminal action plans, Defendant B set the subject of the crime at “R,” which is operated by the Victim S S(S.), as the subject of the crime. On January 2, 2019, Defendant B made a promise to contact the victim at around 22:00 on the same day, and reported that the reservation was made to Defendant A as H message.

On January 2, 2019, at around 22:10 on January 2, 2019, Defendant B entered a closed-end shop with the trade name of “T” in Seoul Seocho-gu Utel V, and inspected the situation while communicating with the victim. However, Defendant B did not commence its execution because it was difficult to control the victim due to a narrow relation in the space.

As a result, the Defendants conspired to murder the victim.

(b) Any attempted robbery of the victim W on January 3, 2019;

On December 31, 2018, at around 01:19, Defendant A purchased a Ho-credit frame to Defendant B and used it to commit a crime, and sent an Internet website ('X') address link that can purchase a Ho-credit framework to H message. Defendant B purchased a Ho-credit frame to be used for committing a crime on the above link sent by Defendant A.

Defendant A reported that the crime was failed as described in the above paragraph (a) from Defendant B, and around 05:00 on January 3, 2019, Defendant A sent H message to Defendant B, and sent it to Defendant B at one-person marina shop with the view to female employees, and proposed that Defendant B murder female employees in order to conceal the crime by threatening female employees’ face by drinking in a knife and knife with knife with the face of female employees. Defendant B conspired to murder female employees in order to conceal the crime. In response to the proposal, the Defendants attempted to murder female employees at one-person marina shop and receive money and valuables.

In accordance with the above public offering and criminal action plan, Defendant B set the object of crime as “Y” operated by the victim W (the age of 28) by black the object of crime on the “R site,” and made a promise to contact the victim at around 14:00 on January 3, 2019, and reported that the reservation was made to Defendant A as H message.

Defendant B, at around 14:13 on January 3, 2019, carried a knife, knife, credit frame, Cheong tape, and lock, etc. to be used for committing the crime, and Y in Seoul, Gangnam-gu Office 2tel AA, and attempted to murder the victim with a knife that knife, which was continuously prepared in advance, was flife with a knife with a knife, with a knife with a knife with a knife with a knife with a knife with a knife with a knife with a knife with a knife with a knife, a knife with a knife, and a knife with a knife with a knife.

As a result, the Defendants conspired to take property of the victim and murdered the victim, but attempted to do so.

C. On January 5, 2019, Defendant B, the robbery against the victim AB and the victim AC, had failed to commit the crime and moved to Incheon to continue to commit robbery. On January 3, 2019, Defendant B moved to Incheon around January 3, 2019 according to the direction of Defendant A to continue to commit robbery. On January 4, 2019, Defendant B used a bank with a tool for committing a crime and returned to Michuhol-gu Incheon Metropolitan City ADdong, but did not find the object of the crime, and did not eventually commence its execution.

Defendant A received a report from Defendant B on the failure to commit the crime as above, and around 04:00 on January 5, 2019, Defendant B asked Defendant B to the effect that Defendant B was failed to follow his instructions due to the failure to follow the instructions, and asked Defendant B to be waiting for a specific studio or lap in front of the commission of the crime. Defendant B demanded that Defendant B start the robbery immediately at the time of a female or senior citizen’s death. Defendant B sent an Internet press address link with the content that he participated in the crime by threatening convenience employees with a deadly weapon, and informed Defendant B that the crime could be easily successful in the commission of the crime by using a knife.

On January 5, 2019, at around 13:00, Defendant A provided Defendant B with a knife with a female or senior citizen as the object of the crime, and provided Defendant B with the H message called the strong withdrawal of money and valuables. In response, Defendant B provided a bank with a tool for committing the crime, such as her knife, and knife, in accordance with the above public offering and criminal activity plan, at the flife with the same day at the flife, which was implied, around 14:00, and black the target of the crime.

Defendant B 16:43 on January 5, 201, 16: the victim AB card knife AF and the victim AB had knife the above knife at the victim's knife and 81 years old, and tried to commit robbery against the above victim after discovering the victim's knife at the victim's knife and knife the knife inside the above victim's knife, and then without deducting the victim's knife from the above knife at the victim's knife's knife and knife inside the above knife card, the victim's knife knife knife knife knife knife knife, and the victim's knife knife knife.

As a result, the Defendants conspired to murder victims and forcibly received the victims' property.

(d) homicide with respect to AJ around January 6, 2019;

After committing the crime as described in paragraph (c) above, Defendant A instructed Defendant A to continue to commit robbery by moving to Busan via H message. On January 5, 2019, Defendant B boarded the Busan KTX train and moved to Busan. On the same day, Defendant B was accommodated in AMM telecom located in Busan Dong-gu, Busan.

At around 10:30 on January 6, 2019, Defendant A sent Defendant B a H message to Defendant B, stating that “I would like to kill five (five (five (five) persons to murder), to which I would like to know, and then, the elderly, I would like to know, I would like to know, I would like to keep committing robbery.” On the same day, Defendant B would request Defendant B to send a link to the address of the “R” site at around 13:23 on the same day, and sent Defendant B would continue to commit robbery with the link at the above site’s address.

Defendant B, in accordance with the above public invitation and criminal activity plan, was determined as the target of the crime of “AK where the victim AJ (n, 49 years of age) was working as a marina branch, by black the target of the crime in “R,” and made a promise to contact the victim on January 6, 2019 and at around 18:00 on the same day.

Defendant B, at around 16:10 on January 6, 2019, was in possession of a room consisting of knife, knife, knife, hearing tape, and lockets, and was administered in order to examine in advance the surrounding area of the above marina business located in Busan Jin-gu AL, Busan.

As a result, the Defendants conspired to murder the victim.

2. Fraud by using debit cards under the name of Defendant AB and violation of the Specialized Credit Finance Business Act;

On January 5, 2019, at around 19:10, Defendant B purchased hamb and drinking water, etc. at a convenience store operated by the 21 optical wave distribution in the 21 optical wave, and Defendant B paid KRW 10,220 of the price by presenting the IB K enterprise card under the name of the AB, such as the above 1-C, as he/she is the lawful holder, as described in the foregoing 1-C, and then, from around that time to January 6, 2019, Defendant B used the C check card under the name of AB and the physical check card under the name of AC, which was forcibly taken seven times in total, as shown in attached Table 2-C, and acquired KRW 206,950.

Application of Statutes

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

(a) Defendant B: The main sentence of Article 338 of the Criminal Act, Articles 30 (AB, and AC’s robbery; death penalty); Articles 342, 338 of the Criminal Act; Articles 30 (Preparation of Robbery; Selection of Robbery); Articles 255, 250 (1), and 30 (Preparation of Murder); Articles 347 (1) and 30 (Attachment Table 1 of Crime Sovereign; Selection of Imprisonment); Articles 70 (1) 4 of the Specialized Credit Finance Business Act; Articles 30 (Attached Table 1) of the Criminal Act; Articles 347 (1) and 34 of the Criminal Act; Articles 347 (1) (Selection of Imprisonment); Articles 34 of the Criminal Act (Attached Table 2 of Crime Soverline); Articles 347 (2) (Selection of Fraud; Selection of Imprisonment); Articles 70 (1)4 of the Specialized Credit Finance Business Act (Attachment Table 2); Articles 70 (1) and (2) of the Election of the Credit Card.

(b) Defendant A: the main sentence of Article 338 of the Criminal Act, Article 30 (AB, and robberys to Victims E, AB, and AC, choice of life style), Article 342, the main sentence of Article 338, Article 30 (Selection of Murder) of the Criminal Act, Articles 255, 250 (1), and 30 (Selection of Murder) of the Criminal Act, Articles 347 (1) and 30 (Attachment Table 1 of the List of Offenses), Article 70 (1) 4 of the Specialized Credit Finance Business Act, Article 30 (Selection of Imprisonment) of the Criminal Act

1. Aggravation for repeated crimes;

Defendant B: Article 35 of the Criminal Act [Inasmuch as there are previous records of a violation of the Punishment of Violences, etc. Act, which has completed the execution of punishment on July 16, 2018, each of the crimes of murder preliminary, fraud, and each of the crimes of violation of the Specialized Credit Finance Business Act]

1. Handling concurrent crimes;

(a) Defendant B: the former part of Article 37, Article 38(1)1, and Article 50 of the Criminal Act (the crime of robbery against the victim E with the largest punishment and punishment has been selected, and no other punishment shall be imposed);

(b) Defendant A: the former part of Article 37, Article 38(1)1, and Article 50 of the Criminal Act (i.e., life imprisonment for the crime of robbery against Victim E with the largest punishment and punishment)

1. Discretionary mitigation;

A. Defendant B: Article 53 and Article 55(1)1 of the Criminal Act (hereinafter referred to as “the grounds for two types”), which is favorable to Defendant B;

B. Defendant A: Of Articles 53 and 55(1)2 of the Criminal Act (hereinafter referred to as “the grounds for a two-year sentence”), circumstances favorable to Defendant A are considered.

1. Confiscation;

(a) Defendant B: Article 48(1)1 of the Criminal Act

(b) Defendant A: Article 8(1)1 and 2 (No. 62) of the Act on Regulation and Punishment of Criminal Proceeds Concealment, and Article 48(1)1 (s) of the Criminal Act

1. Additional collection:

Defendant B: Articles 10(1) and 8(1)1 and 8(2) of the Act on Regulation and Punishment of Criminal Proceeds Concealment

[Grounds for Calculation of Additional Imposition]

① Criminal proceeds acquired by Defendant B from committing a crime in violation of each Specialized Credit Finance Business Act listed in attached Table 1: 2,970,800 won

② Criminal proceeds acquired by Defendant B from committing a crime in violation of each Specialized Credit Finance Business Act listed in attached Table 2: 206,950 won

③ Of the above criminal proceeds, money remitted by Defendant B to Defendant A: 670,500 won

(4) Additional collection charges: 2,507,250 won (=1) 2,970,800 won + ② 206,950 won - ③ 670,500 won)

1. Order of provisional payment;

Defendant B: Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

[Defendant B]

The crime of murder is a serious crime that is one of the victims' lives, which cannot be altered or used for any reason. The Defendant conspired with the victim E, his father, who is his father, to murdered the victim E, and took money and valuables owned by the victim. In particular, the Defendant attempted to kill the victim in advance by finding the victim's house knife and knife the victim's bridge, etc., and then murdered the victim without any contact with the victim in Busan, by taking advantage of the circumstances of the victim's knife and knife and knife during the crime. The Defendant attempted to murder the victim without any contact with the victim, and then to kill the victim in Busan, by taking advantage of the circumstances of the victim's knife and knife and knife and knife the victim's face at the time of the crime. After that, the Defendant attempted to murder the victim's knife and knife the victim's face.

The victim E was killed by a defendant who is his/her own son, not another person, but his/her own son, and the general person was killed for the last time. The victim AB and AC sent out daily life after a usual old age without any special need to do so. Moreover, the victim AB and AC’s bereaved family members who lost their love family members were suffering from extreme pain without any error. It seems that the victim’s psychological shock and suffering that cannot be said to be achieved, and the victim AB and AC’s bereaved family members who were deprived of their pet family members were able to live together with such lifelong pain and pain. Nevertheless, the defendant appears not to have been respected at least for another person’s life, such as considering the strong intention to plan and implement additional crimes until the arrest of the investigative agency, and there is no need to take into account the circumstances where the victims and their bereaved family members made an endeavor to recover from the victims and their bereaved family members, and there is no need to take into account the same kind of punishment as the victims and the victims who did not have any other person’ life or body corresponding to this case.

However, considering the fact that the death penalty is extremely exceptional punishment, which is a very cold punishment that deprives human life itself of it, the sentence of death penalty should be permitted only when objective circumstances exist to recognize that there are special circumstances that can be justified in light of the degree of responsibility for the crime and the purpose of punishment (see, e.g., Supreme Court Decision 2015Do5785, Aug. 27, 2015). In this case, the defendant is waiting for both crimes. The defendant is committing two crimes before each of the crimes in this case and was punished twice (the current main building and fire prevention committed on February 20, 2013). If the defendant was sentenced to death penalty on March 25, 2014, his/her own life without prison labor for more than three years, and his/her family members were released from prison, and his/her family members were released from prison for treatment and treatment without prison dignity, and the defendant was released from prison treatment and treatment for his/her own life without prison personality and injury.

[Defendant A]

1. Scope of applicable sentences under law: Imprisonment with prison labor for not less than ten years nor more than 50 years;

2. Non-application of the sentencing criteria;

Since the sentencing criteria are not set for each crime of murder, each crime of violation of the Specialized Credit Finance Business Act, but the sentencing criteria are not set, and the crimes for which the sentencing criteria are not set are established are substantive concurrent crimes, the sentencing criteria are not applied.7)

3. Determination of sentence: The 40-year human life is the highest legal interest protected by the law of our society, and the act of infringing upon it as the most dignity is a serious crime, regardless of its reason. The Defendant, even though having been aware of the history of mental and medical treatment, should well be killed as the victim E, his father, and the victim E, his father, who is one of his father, established a murder plan for the victim E and his family; notified the method of the crime and strengthen his will to commit the crime; and accompanied the scene of the crime to the scene of the crime and share the commission of the act to the scene of the crime. Furthermore, even though his mother was aware of the crime committed by B, he did not appear in the name of the victim so that he could detect the object of the crime. In addition, the Defendant did not appear in the name of the victim by sending out the scene of the crime, informing the victim of his failure to commit the crime and the tool of the crime, etc., and did not appear in the name of the victim as a whole before and after the commission of the crime.

Since the result caused by the defendant's act is too harsh, the defendant cannot be subject to severe punishment corresponding thereto. Nevertheless, the defendant himself/herself after his/her act was committed independently after his/her act in Westerncheon, and the defendant extended his/her common sense, that he/she only helps him/herself to commit the crime, and that he/she did not deny his/her act, and did not endeavor to recover damage to victims and their surviving families or to commit the crime.

However, considering the circumstances favorable to the defendant, such as the fact that the defendant did not directly murder the victim AB and AC, and the fact that the defendant seems to have extremely little profit from the actual acquisition of the defendant through each robbery, the defendant's age, environment, motive and background of the crime, means and result of the crime, and the circumstances after the crime, etc., a sentence of 40 years shall be imposed.

Judges

The assistant judge of the presiding judge;

Judge Jina decoration

Judge Shin Dong-dong

Note tin

1) The co-defendant indicates that only the defendant falls under any of the subparagraphs below is "defendant" and the co-defendant is written only in his name.

2) On January 2, 2019, the preparation for murder with the victim S, attempted robbery with the victim W on January 3, 2019, attempted robbery with the victim on January 5, 2019, robbery with the victim AB, and AC on January 6, 2019, and murder with the victim AJ on January 6, 2019: Provided, That in cases of the violation of fraud and Specialized Credit Financial Business Act by using a debit card under the name of AB committed by the defendant alone, the crime was committed after Seocheoncheon, but the issue of this case was not at issue, so it refers to "each crime after the crime was committed for convenience."

3) The lower court determined that it is difficult to recognize a functional control over each of the crimes committed by Defendant A through an essential contribution to the crime committed by Defendant A, and that Defendant A was acquitted on the part of the reasoning with respect to the following facts: (a) recognizing the crime of attempted murder by robbery against Defendant A, the crime of attempted murder by robbery against the victim W, the crime of attempted murder by the victim AB and AC, and the crime of robbery by robbery against the victim AC; (b) acquitted the victim S; (c) attempted murder by the victim AI; (d) attempted robbery against the victim W; and (e) robbery against the victim AB and AC; and (e) committing robbery against the victim AC.

4) In the event that Defendant A is recognized as a principal offender with respect to each of the crimes committed after Seocheon, the part of the lower judgment against Defendant B cannot be exempted, and the part of the lower judgment against Defendant B is first determined as to Defendant A.

5) The contents written in the H message received and sent by B and the Defendant (hereinafter referred to as “the”) and in the table are written by changing the contents of H message received and sent by B and the Defendant in the form of a literature in compliance with the Plateral Law.

6) However, to the extent that it does not impede the Defendants’ exercise of their right to defense, the part of the facts charged was modified by reflecting the facts acknowledged by this court.

7) However, when referring to the sentencing criteria for offenses for which the sentencing criteria are set, the following:

1. The crime of robbery against the victim E (the first crime);

[Determination of Punishment] Type 4 (Murder combined with Serious Crimes)

【Special Earp. Aggravation : planned murder and cruel homicide

[Recommendation and Scope of Recommendations] Special Priority Area, Imprisonment with prison labor for not less than 25 years to imprisonment

2. Each robbery against the victim AB and AC (the second crime);

[Determination of Punishment] Type 4 (Murder combined with Serious Crimes)

[Special Aggravation] Aggravations: A victim who is vulnerable to planned murder, and a victim who is vulnerable to crime.

[Recommendation and Scope of Recommendations] Special Priority Area, Imprisonment with prison labor for not less than 25 years to imprisonment

3. Attempted robbery (third-party crime);

[Determination of Punishment] Type 4 (Murder combined with Serious Crimes)

【Special Dop Dop Dop homicides (Aggravated Elements), No Minor Bodily Injury or Bodily Injury (Discretionary Elements)

[Recommendation and Recommendation Scope] Basic Field, 6 years to 8 months from 20 years to 20 years (the scope of sentence in the basic field of robbery shall be applied from 20 years to 1/3 years to 2/3 to the minimum range of sentence for murder crimes, and the upper limit shall be reduced to 2/3, and 'weapon' shall be reduced to '20 years or more').

4. Crimes of fraud (Article 4);

[Determination of Punishment] General Fraud (less than KRW 100,00)

【Special Convicted Person】

[Decision of the Recommendation Area] Basic Field, Imprisonment of six months to one year and six months;

5. Scope of recommending punishment according to standards for handling multiple crimes: Imprisonment with prison labor for not less than 25 years or for life (the upper limit of crime ＋ the upper limit of crime 1/2 of the upper limit of crime ＋ 1/3 of the upper limit of crime 2).

6. Scope of recommended sentences according to applicable sentences: 25 years to 50 years (in cases where the upper limit of the range of sentences recommended in the sentencing guidelines is inconsistent with the statutory applicable sentences, it shall be in accordance with the statutory applicable sentences).

심급 사건

-대전지방법원 홍성지원 2019.8.20.선고 2019고합4

대전고등법원 2019.12.27.선고 2019노331

-대법원 2020.4.9.선고 2020도950

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