2016 Highest 3491 A. Special larceny

(b) Attempted special larceny;

(c) Violation of the Punishment of Violences, etc. Act;

(Violation of the Punishment of Violences, etc. Act for the Change of Crime)

(Joint Building Intrusion)

1.(a)(c) A;

2.(a)(c) B

3.(c)(c)

Kim Jae-woo (prosecution), Kim Jong-sik, Kim Jae-sik, Kim Jong-sik, and Kim Jong-Un (Trial)

Attorney D (for the defendant)

July 19, 2017

Defendants shall be punished by imprisonment for six months.

However, for one year from the date this judgment became final and conclusive, the execution of each of the above punishments against the Defendants shall be suspended.

Criminal facts

In the process of the establishment of Defendant A’s hospital, the Defendants reported to the police with the content that they were guilty of fraud from the victim E. On October 16, 2015, when the victim was arrested with a warrant of arrest on October 16, 2015, the Defendants entered the office of the victim located in the Busan Jin-gu F building No. 709, for the defendants to have the documents attached to the victim.

1. Joint criminal conduct by Defendants (Crimes on October 16, 2015)

(a) Violation of the Punishment of Violences, etc. Act;

On October 16, 2015, the Defendants jointly opened a gate through a duplicating hole before the office of the above victim, and entered the said office and intruded on the structure of the victim.

(b) special larceny;

피고인들은 합동하여, 위 일시경 위 피해자의 사무실 안에 들어가 그 곳에 있던 피해자 소유인 시가 380만원 상당의 귀갑안경, 시가 140만원 상당의 듀퐁라이터, 시가 100만원 상당의 삼성노트북, 차량 열쇠 1개, 법인 명의 통장, 사업자등록증, 인감증명서, 주식양도계약서, 등기사항전부증명서, 인감도장, 일반도장, 전자세금계산서 등 서류철, 피해자가 점유하고 있던 피고인 A의 가족인 G 명의 통장, 주민등록등본, 인감증명서, H 명의 운전면허증 사본, 주민등록증 사본, I 명의 인감증명서, 주민등록증 사본, 통장 사본 등을 가지고 가 이를 절취하였다.

2. Joint criminal conduct by Defendant A and Defendant B (defendant 17, 2015, and crime)

(a) Violation of the Punishment of Violences, etc. Act;

On October 17, 2015, the Defendants, in collaboration with J, received a password from the above victim's office before the above victim's office, and opened the entrance door to the above office, and invaded the victim's structure into the above office.

(b) Attempted special larceny;

The Defendants, in collaboration with J, did not commit an attempted crime, even if they were colored inside the body of the said victim for the purpose of carrying documents, etc., by entering the office of the said victim at the above time and time.

Summary of Evidence

1. The defendant A's partial statement in the seventh trial records;

1. Examination protocol of Defendant A by the prosecution;

1. Each police interrogation protocol against the Defendants and J

1. Each police statement of E, K, and L;

1. Investigation report (as to attachment of photographs of seized articles);

Application of Statutes

1. Relevant Article of the Punishment of Violences, etc. Act; Article 2(2)1 of the same Act; Article 319(1) of the Criminal Act; Article 331(2) and Article 331(1) of the Criminal Act (the occupation of special larceny); Articles 342 and 331(2) and (1) of the Criminal Act (the occupation of special larceny); Article 2(2)1 of the Punishment of Violences, etc. Act; Article 319(1) of the Criminal Act (the occupation of attempted special larceny); Article 331(2) and (1) of the Criminal Act; Article 342 and Article 31(2) of the Criminal Act (the occupation of special larceny); Article 331(2)1 of the Criminal Act; Article 342 of the Criminal Act; Article 331(2)1 of the same Act; Article 331(2) and (1) of the same Act (the occupation of attempted special larceny); Article 3.

1. Aggravation of concurrent crimes (defendants);

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of each Criminal Code (a point of view for criminal behaviors)

1. Suspension of execution (the defendants);

Article 62 (1) of the Criminal Code (Concurrent Consideration for Discretionary Mitigation)

Judgment on the Emergency Evacuation Claim

The Defendants and the defense counsel asserts that the Defendants’ act constitutes an emergency evacuation since there is a considerable reason to prevent the victim from executing illegal loans by using documents delivered by the Defendant A and C.

As alleged by the Defendants, it is difficult to view the victim as the current unfair infringement even if he/she intended to implement an illegal loan, and the act of intrusion upon another person's structure and arbitrarily carrying out documents, etc. without permission is beyond a considerable scope and does not seem to have been the sole means to do so. Therefore, the above assertion is rejected.

Judge Cho Jong-hoon