2019No344 Robbery, death, bodily damage, dead body abandonment

2019 Jeonno16 (Joint Attachment Orders)

A

He/she shall file a prosecution and request to attach an electronic device, and a yellow public trial;

Attorney Lee J-jin (Korean)

Suwon District Court Decision 2019Dahap35, 2019 Jeonju1 decided August 8, 2019

(Consolidated) Judgment

October 31, 2019

All appeals filed by the defendant and the person subject to attachment order and the prosecutor are dismissed.

1. Determination of the accused case

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

1) The assertion (as to robbery)

The Defendant’s refusal of the Defendant’s request that the period of repayment be postponed, thereby murdering the victim as a contingent, and not murdering the victim with the intent to evade his/her obligation. Since G, which is the victim’s seat, was aware of the obligation and obligation between the Defendant and the victim, the Defendant could not be exempted from the obligation by murdering the victim. Moreover, taking the back of the back, etc. after the Defendant murdered the victim does not constitute robbery. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine that found the Defendant guilty of committing robbery beyond murder, thereby adversely affecting the conclusion of the judgment.

2) Whether there was an intention to evade the obligation

In full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, it is recognized that the Defendant had the intent to evade the obligation at the time of murdering the victim.

① As to the background of the crime, the Defendant stated to the effect that “the principal of the money borrowed by the Defendant was to be repaid in full from the next month,” that “the victim was unconditioned in this month,” and that “the victim was killed in a single knife,” and that “the victim was killed in a single knife which was in a kitchen,” and that “the victim was killed in the back head of the victim who was out of the kitchen.”

② While consistently arguing to the effect that “the Defendant consistently killed the victim by contingency,” the Defendant stated in the prosecution that “In the absence of money from March 2019, the Defendant would be able to pay back money if the Defendant died and concealed the victim in a film (Evidence No. 658 pages).” (3) On March 19, 2019, the Defendant searched “human body structure,” “human body structure,” “human body structure,” “human body structure,” “human body structure,” “human body structure,” “human body structure,” and “human structure” from AC knowledge and margin,” and sought “human body structure,” and “the Defendant, as long as he/she did not satisfy any person who died and died of the victim, he/she could not be threatened with the Defendant.”

④ At the time of committing the instant crime, the Defendant did not receive KRW 600,000 per month from the daily living cost, and had no income, and had experienced difficulties in living by paying monthly insurance premiums, credit recovery costs, loan interest to the victim, mobile phone charges, etc.

3) Whether property profits have been acquired

In order to recognize the so-called forced enforcement under the latter part of Article 333 of the Criminal Act, "acquisition of profits on property," which is the requisite for the crime of acquisition, a situation must be established where property gains have actually been transferred to a criminal or a third party at a disadvantage against the victim (see, e.g., Supreme Court Decision 2004Do1098, Jun. 24, 2004). In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, it is recognized that the defendant killed the victim and then transferred his/her property gains to a disadvantage in the victim.

① As the court below properly explained, it is recognized that the Defendant and the victim did not talk about the fact that both the Defendant and the victim borrowed money and the victim borrowed money in cash, and the victim did not talk about the fact that the victim borrowed money to his or her spouse and children, as well as to the other spouse and children, and the Defendant did not inform other persons of the fact that the Defendant borrowed money.

② The Defendant and the victim have been living far away from his family for a long time. The Defendant was aware of the victim’s living conditions near the victim, and thus, appears to have been well aware of the fact that the victim did not inform the surrounding party of his money transactions and his heir. At the time of the prosecutor’s investigation, the Defendant stated that “It is necessary that the Defendant was aware that only the Defendant and the victim are aware of the fact that he borrowed money from the victim?”

③ As pointed out by the defense counsel, AD, knowing the victim and its well-known, made a statement at an investigative agency that “AD lent the hospital fee to the general public (the defendant referring to the defendant) who lives in the next house of the victim.” At the same time, AD stated at the same time that “D, as it is not in the nature of the victim’s horse without permission, did not talk about how much it was lent (the fact that AD borrowed money from the victim) since it was not in the nature of the victim’s horse without permission.” Therefore, it cannot be said that AD’s claim against the defendant after the victim’s death cannot be inferred.

4) Whether it was forcibly taken into consideration the anti-influor, etc.

Robbery is established when a robbery commits robbery with an opportunity to commit robbery. As such, the requirements for murdering in a stage that can be deemed to have not been completed by social norms as a right after the commission of robbery or immediately after the commission of robbery or immediately after the commission of the commission of the crime (see, e.g., Supreme Court Decision 96Do1108, Jul. 12, 1996).

According to the evidence duly admitted and examined by the court below, the defendant committed the robbery with the intent to escape from the obligation to borrow the loan to the victim and brought back back the brus worn by the victim while destroying the body of the victim immediately after murdering the victim, and only those articles with economic value, such as the brus and clothes worn by the victim at the time, and keep them separately in the stude of television hold box. In light of the above, the defendant committed the robbery with the intent to escape from the obligation to borrow the loan, and took the brus that the victim wear in the opportunity to wear.

5) Sub-decisions

It is sufficiently recognized that the defendant acquired financial benefits to kill the victim with the intention of evading the unpaid debt, thereby releasing the obligation of the victim, and that he forcibly taken the reflects, etc. worn by the victim immediately after the death. The judgment of the court below does not err by misunderstanding the facts or misunderstanding the legal principles alleged by the defendant, and this part of the defendant's assertion is rejected.

B. As to the assertion of unreasonable sentencing by the defendant and prosecutor

1) The assertion

With regard to imprisonment with prison labor, etc., the defendant asserts that the defendant is excessively unfasible, and that the prosecutor is too unfasible and unfair.

2) Determination

In a case where there is no change in the conditions of sentencing compared to the original judgment in the appellate court, and the sentencing of the lower court is not beyond the scope of reasonable discretion, it is reasonable to respect such a case (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). In this case, there is no significant change in the conditions of sentencing compared to the original judgment in the

The life of a person is the highest and most of the legal interests that the State and society should protect, and the act of infringing is a serious criminal act that cannot be justified. The defendant kills the victim's body at a knife knife one time with a knife knife, and brue two times with a brick. The victim kills the victim's body by brueing the victim's back, brue and lending living expenses to the defendant who resides in the adjoining area. When the defendant was hospitalized, the defendant brue against the defendant, such as visiting the defendant's residence and brue, but the defendant did not complete payment of 3 million won borrowed from the defendant, and the defendant did not brue the victim's body with a view to hiding the victim's body, and the defendant did not have any mental suffering from the victim's flafing and saw that it was difficult to remove the victim's body due to the death of the victim, and the defendant did not have any mental suffering from the victim's body.

However, the punishment heavier than that imposed by the court below is subject to death penalty. Considering the fact that the death penalty is extremely exceptional punishment which can be presented by the judicial system as a very cold punishment that deprives human life, the sentence of death penalty is to be allowed only when there are special circumstances where anyone can recognize that it is justifiable in light of the degree of responsibility for the crime and the purpose of punishment (see Supreme Court en banc Decision 2015Do12980, Feb. 19, 2016). The fact that the defendant recognized all the remaining crimes except for robbery and appears to have followed his/her behavior, there was no history of punishment beyond the fine, and that there was no history of punishment against the defendant, and that there is no possibility to view that human nature does not reach the state where human nature is extinguished to the extent that there is no room for edification improvement, such as not showing any abnormal aggressive attack or criminal tendency toward another person or society before the crime in this case is committed.

Considering the following circumstances: (a) the Defendant’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime; and (b) circumstances after the crime, etc., the lower court cannot be deemed to have been excessively heavy to sentence the Defendant for life, or exceeded the reasonable scope of discretion by putting the Defendant into force.

Therefore, the defendant and the prosecutor's argument on this part are not accepted.

2. Judgment on the case of a request for attachment order

Since the person subject to the request for attachment order and the prosecutor filed an appeal against the prosecuted case, it is deemed that the case subject to the request for attachment order also filed an appeal pursuant to Article 9(8) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders. However, the person subject to the request for attachment order and the prosecutor did not submit any grounds for appeal against the request for attachment order, and even if examined ex officio, the reason for reversal of

3. Conclusion

The appeal filed by the defendant and the person who requested the attachment order and the prosecutor is dismissed as all are without merit.

The presiding judge, judge and police superintendent;

Judges in depth;

Judges' terms and conditions;