절취할 의도로 핸드빽에 손을 댄 행위와 절도행위의 실행의 착수

소매치기를 하려고 피해자에게 접근하여 그가 들고 있는 핸드빽에 손을 댔다면 그 핸드빽을 아직 열지 못하였다 할지라도 절도행위의 실행의 착수가 있다고 보아야 할 것이다.

Articles 329 and 342 of the Criminal Act

【Court Decision 66Do108 delivered on September 20, 1966 (Article 342(4) of the Criminal Act, Article 341 of the Criminal Act, Article 378)

Defendant

Defendant

Suwon District Court Incheon Branch (82 Gohap44)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

One hundred and fifty days of detention days before the judgment of the court below is made shall be included in the above sentence.

A large-scale Myeonknknife (No. 1), a small Myeonknife (No. 2) shall be confiscated, respectively.

피고인 및 변호인의 항소이유 첫째점은, 피고인은 이 사건 범행중 절도범행들을 저지른바 없는데도 불구하고 이를 모두 유죄로 인정한 원심판결에는 채증법칙을 위배하였거나, 증거없이 사실을 인정함으로써 판결결과에 영향을 미친 위법이 있다는 것이고 위 변호인의 항소이유 둘째점은, 원심판시 제1 (라)항 범죄사실에 관하여 설사 피고인이 금품을 절취할 의도로 피해자에게 접근하여 피해자가 소지중인 핸드빽에 손을 대려는 순간 피고인이 체포되었다고 하더라도 그 핸드빽을 열지못한 상태로서는 아직 절도의 실행의 착수가 있다고 볼 수 없음에도 불구하고 이에 대하여 절도미수를 인정한 원심판결에는 실행의 착수에 관한 법리를 오해하여 판결의 결과에 영향을 미친 위법이 있다는 것이고, 피고인의 항소이유 둘째점 및 변호인의 그 셋째점은 원심판결이 피고인에 대하여 선고한 형의 양정이 너무 무거워서 부당하다는데 있다.

Therefore, as to the above argument of mistake of facts, the judgment of the court below is guilty of all the facts constituting the crime in subparagraph 1 (a), (2), (3), (4) and (b) of Article 1 of the judgment of the court below, but the defendant denies the above crime from the prosecution to the prosecution of the first instance court. The protocol of examination of the defendant as to the defendant in the process of handling affairs by judicial police officers meeting the above facts constituting the crime is not evidence to acknowledge the above facts, and each testimony and investigation period in the court of the court below's decision of the court below and non-indicted 1 and non-indicted 2's testimony in the court of the court below is merely a fact that the defendant committed a retail crime in the past, without specifying the date, place, victim, and damaged goods, and the defendant's criminal case of non-indicted 1 which newly examined evidence at the court of the court of the first instance [the court below's decision 79Da60,1067 (combined)] of the Seoul District Court's Incheon District Court's 79Da60, and the defendant's remaining evidence evidence of this case.

On December 4, 1976, the Defendant was sentenced to 10 months of imprisonment with prison labor for attempted larceny in the Seoul District Court Incheon Branch of the Seoul District Court, and was sentenced to 10 months of imprisonment with prison labor for the same offense of larceny, and was discharged from prison to the Incheon Juvenile Reformatory on June 197, three times of the same offense of larceny;

1. Habitually;

(A) Joint recruitment with Nonindicted 1 and 4

(1) At around 12:00 on February 16, 1979, the lower home of the Dongcheon-gun river basin, and the Nonindicted Party 5, the victim Nonindicted Party 5, who had the wind to cover the above victim by leaving the view of the view of the view of the view of the view of the view of the victim, and the Defendant, who, in turn, teared the hand of the knife in the face of the knife in possession of the knife, cut off by means of a retail method of taking off the goods worth KRW 10,400,000 in total from 35 copies of the cashier’s checks owned by the knife, and cutting off them by means of a retail machine.

(B) In collusion with Nonindicted 6, 7, and 8 on July 20, 1978, the buses in the East East-do in Incheon on or around 13:00 on July 20, 1978, around the time when the buses pass on the street in front of the national school located in the drawing drawing and drawing of the Nam-gu Incheon, Nonindicted 7, 8, and the Defendant, as described in the foregoing paragraph (a), have the wind as soon as the victim subparagraph (a). Nonindicted 6, who, in turn, fell from the plastic bags used by Nonindicted 9 of the victim, 30,000 won, and one piece of cash owned by the victim, with the retail method for the inner names.

(다) 1982. 1. 16. 16:30경 인천 중구 인현동 소재 동인천 전철역 대합실에서 피해자 45세 가량의 성명불상 여자에게 접근하여, 금품을 절취할 의도로 동인이 들고 있던 핸드빽에 손을 대는 순간 인천경찰근무 순경 공소외 10에게 발각되어 그뜻을 이루지 못하고 미수에 그치고,

2. At around 16:30 on January 16, 1982, at the Incheon Jung-gu Incheon Police Station that was located in Jungdong, Jung-gu, Incheon, the police box was arrested for the crime of the above paragraph (1) and was arrested for Nonindicted 11, 10, 12, etc. while serving for the police box, the knife knife of the knife used in the dispatch box of the length of 25 centimeters in possession, and the knife of the knife who was threatening to “I would die if I,” thereby interfering with the execution of official duties of those who were in the process of arresting and investigating flagrant offenders;

3. At the time and place of the above paragraph 2, Nonindicted 11, and Nonindicted 12, the chief of the police box service at the victim’s patrol box, attempted to arrest the Defendant, and damaged the property equivalent to KRW 27,000 in total in the face of the police uniform in which the person was in possession, thereby impairing its utility.

The remainder of the facts in the facts of the ruling excluding the preceding and habitual facts:

1. The part of the first trial record of the court below, which corresponds to the facts in the above judgment, is written.

1. Among the second protocol of the trial of the court below, each of the above facts among the protocol of the examination of the witness of the court below as to Nonindicted 10, and the protocol of the second protocol of the trial of the court below as to Nonindicted 1 and 2 as to Nonindicted 1 and 2, shall be recorded

1. Each statement that conforms to the above facts among the suspect interrogation protocol of the defendant and each statement of the non-indicted 2 and 10, and the statement of the non-indicted 1 in the process of handling the affairs of the judicial police officer.

1. Each part of the protocol of the first trial of the Seoul District Court in the Seoul District Court 79Kadan660, 1067 (Consolidated) and the support 78 Gohap130 cases, which correspond to the above facts, shall be written in the prosecutor's office of non-indicted 13.

1.A large Myeonk-blade and one small Myeonk-blade (No. 1, 2) respectively, seized;

an integrated manner; and

A previous offense may be recognized by comprehensively taking account of the statements consistent with the facts of the previous offense in the investigation data card of the third head of the Public Security Headquarters, the first trial record of the court below and the protocol of interrogation of the accused in the preparation of the prosecutor's protocol of the defendant, which correspond to the facts of the previous offense in the above judgment, and all of the statements corresponding to the facts of the previous offense in the above judgment. Habitually, the defendant was a person having the same criminal offense as the previous offense in the above judgment, and the means and methods of the crime in this case, and circumstances after the crime in light of the above facts, it is sufficient to prove that the defendant

피고인의 변호인은 위 판시 1의 다 소위에 대하여 피고인이 설사 금품을 절취할 의도로 피해자가 들고 있던 핸드빽에 손을 댔다고 하더라도 그 핸드빽을 아직 열지못한 사실만으로는 절도행위의 실행의 착수가 있었다고 볼 수 없다고 주장하나 위에서 인정한 바와 같이 피고인이 소매치기를 하려고 피해자에게 접근하여 그가 들고 있는 핸드빽에 손을 댔다면 절도행위의 실행의 착수가 있다고 보아야 할 것이므로 변호인의 위 주장은 받아들일 수 없다.

Article 5(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act"), Article 331(2) and (1), Article 342, and Article 329 of the Criminal Act, the so-called "Article 144(1) and Article 136(1) of the Criminal Act," Article 36(1), the so-called "Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes," Article 36 of the Criminal Act, the so-called "Article 3 of the Act on the Punishment of Violences, etc.," Article 5 of the Criminal Act, Article 36 of the Criminal Act, the so-called "Article 1(1), (2), and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, all of which were held by the defendants, shall be punished by imprisonment for a limited term, and Article 42 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 35 of the same Act, the so-called "Act" shall be included in the same Article 58(1) of the Act.

The summary of the facts charged in the instant case except the aforementioned guilty portion among the facts charged, shall be habitually the Defendant.

1. Joints with Non-Indicted 1 (A final and conclusive judgment in the calendar) and 8 (Abstinence of Prosecution).

(가) 1978. 6. 30. 18:00경 인천전철역과 인천ㆍ제물포간을 운행중인 시내버스안에서, 피해자 공소외 14에게, 위 공소외인등은 동인의 주위를 둘러싸서 시야를 흐리게 하는 등 속칭 바람을 잡고, 피고인은 면도칼로서 동인의 소지중이던 쇼핑빽을 찢고, 그안에 있던 동인소유 현금 500,000원을 속칭 소매치기방법으로 이를 절취하고,

(B) On July 4, 1978, at around 11:30 on July 4, 1978, one victim was approaching the victim at the tethmpheroid in the Nam-gu, Incheon, Nam-gu sublime's Dong, and Nonindicted Party 1 was also attached to the dong's side, and in that context, he took off the property equivalent to the total amount of KRW 715,000,000, in cash and cashier's checks, etc., and stolen it;

(다) 1978. 10. 31. 11:00경 인천 동인천전철역 플렛홈에서, 피해자 공소외 15에게 위 공소외인들은 위 (가) (1)항 기재와 같이 바람을 잡고, 피고인은 동인의 빽을 열고, 속칭 소매치기방법으로, 동인소유의 현금 20,000원과 주민등록증 1매를 꺼내어 이를 절취하고,

(D) At around 16:40 on December 11, 1978, the Nonindicted Party 16, the victim Nonindicted Party 16, as described in the above paragraph (a), shall have wind, and the Defendant shall open a dong and open a dong name retail machine, and cut off 90,000 cash and two pocket books owned by that person, and then cut off them; and

2. Joint recruitment with Nonindicted Party 1

Around 12:40 on August 17, 1978, the non-indicted 17, the victim non-indicted 17, the non-indicted 17, as shown in paragraph (a) of the exhibition 1, shall have winded to the face-to-face of the deceased, and the defendant shall take the property equivalent to KRW 172,00,00, such as one check owned by the Dong and one cash, by a retail sale method, and take the property equivalent to KRW 172,00,00, in the face-to-face, and shall be stolen, as stated in the reasoning of the above reversal, since there is no proof to prove the facts of the crime of this part of the indictment, it constitutes a case where there is no evidence to prove the facts of the crime of this part of the indictment, but it was prosecuted as a crime of habitual larceny in combination with the facts of the above violation of the Aggravated Punishment Act, and it is not pronounced guilty on the order of conviction.

It is so decided as per Disposition for the above reasons.

Judges Gyeong-Gyeong (Presiding Judge)