2014Gohap175 Robbery (a recognized crime: Injury by robbery)

00 (5 - 1), fire-fighting facility technicians

Residential Deputy City

Seoul basic domicile

Dog-Appellee (prosecutions) Dog-hee (Public Trial)

Attorney Choi Ho-hee (Korean National Assembly Line)

August 22, 2014

A defendant shall be punished by imprisonment for ten years.

Facts of crime

【Criminal Power】

On November 23, 2005, the Defendant was sentenced to five years of imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) in the Busan District Court’s Branch Branch Branch Branch on November 23, 2005, and the judgment became final and conclusive on June 30, 2006.

[Criminal Facts]

On April 30, 2004, the president of the reconstruction association, who is the president of the association, had a conflict between 00 (year 45) and the auditor of the association with respect to the affairs of the association, and caused conflicts. On April 30, 2004, at the 68th board of directors of the association, the victim pointed out the defendant's influence and recommended the dismissal of the president of the association, thereby creating an opportunity to prevent the victim from leaving the association.

On May 2004, the Defendant stated to the effect that the Defendant would make the victim be hospitalized in the hospital for 2 to 3 months, resulting in the victim's failure to attend the meeting of the union, and that the Defendant would seem to have no relation with the union by deceiving the victim into the hospital for 2 to 3 months.

Accordingly, in 00, there was a person opposing to the President Kim 00 who had been well aware of the fact that the President of the Union had provided money to the President of the Union, so that the President of the Union would not cause the victim to go out of the next meeting due to the defect, robbery, and that he would not cause the victim to go out of the next meeting. As Kim 00 consented, 00 knew that the defendant would commit the crime together with Kim 00.

The Defendant provided 00 with detailed explanation about the location of the victim’s residence, the place where the meeting of the representative of the apartment occupants is to be held by the victim, the time when the meeting is expected to be closed, the victim’s overall situation necessary for the implementation of the crime, such as the course of returning home to the meeting, etc.

오00과 김00은 2004 . 5 . 11 . 20 : 30경 부천시 원미구 주공아파트 피해자의 주거지 아파트 인근 노상에 오00의 스쿠프 승용차를 주차한 채 승용차 안에서 피해자가 회의 를 마치고 귀가하기를 기다렸다 . 오00이 미리 범행에 사용할 각목 ( 길이 50Cm , 지름 3Cm ) 을 준비해 갔으나 위 아파트 인근 노상에서 벽돌을 발견하자 오00 , 김00은 각목 대신에 벽돌을 범행에 사용하기로 하였고 , 오00은 김00에게 ' 퍽치기하는 것처럼 피해 자의 머리를 가격하여 피해자의 반항을 제압한 후 피해자의 지갑이나 돈을 가지고 오 라 ' 고 일러두었다 .

On May 11, 2004: Around 21:10, the victim was found to be a victim who passed at around 21: 10, and the Kim 00 "the victim was known to be "the victim, the low," and "the victim was waiting within the passenger car, and the victim's back head was determined by using a 10m vis-a-vis vis-a-vis vis-a-vis vis-vis vis-a-vis vis-vis vis-a-vis vis-vis vis-a-vis vis-vis vis-vis vis-a-vis vis vis-vis vis-a-vis vis vis, and the victim was able to get off the back of the victim's back head with the front vis-a-vis vis-vis vis-a-vis vis vis-a-vis vis-a-vis vis-vis vis-a-vis vis-a-vis vis-a-vis vis."

Accordingly, in collusion with the defendant 00 and Kim 00, the defendant took the victim's property by taking the victim's property, and suffered bodily injury such as the number of days of medical treatment to the victim.

Summary of Evidence

1. Partial statement of the defendant on the sixth trial date;

1. Each legal statement of the witness 00, Kim 00

1. Each prosecutor's protocol of examination of the suspect against the defendant, the defendant, the defendant 00, and Kim 00

1. Each prosecutor's protocol on KimOO and full-time 00

1. Each police protocol of statement against MaO, Mao0, Mao00, and Kim 00

1. The investigation report (the telephone record, No. 32 on the list of evidence), the investigation report (the addition of a suspect's phone number of 00)

personal evidence list No. 54), investigation report (a copy of the record of the ordinary meeting of the suspect and victim conflict) attached;

List of Evidence No. 83

1. Written opinions (No. 4 of evidence), Written autopsy and appraisal (No. 8 of evidence)

1. Previous convictions in the judgment: Criminal records and investigation reports (34 No. 34 of the evidence list, such as attachment, etc. of suspect's personal records and investigation reports);

Judgment on whether robbery is offered or not

O0 The court and investigative agency stated that "the defendant was proposed to commit the first crime from the defendant, and only once more than one week until the actual crime was committed, telephone conversations was made several times," and "the defendant must not be related to the union," and "the defendant made a false statement to the effect that it was false," and the facts and circumstances as follows: (i) the defendant was aware of the evidence before the crime of this case; (ii) the defendant was sent three times from May 4, 2004 to the day of the crime of this case to March 1, 200; (iii) the defendant was not present at the location of the defendant's association and the police room in order; and (iv) the defendant was not present at the location of the crime of this case, and there was no need to investigate the credibility of the evidence before the crime of this case, and thus, there was no need to do so.

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 337 and 30 of the Criminal Act [Selection of limited imprisonment: Provided, That the upper limit of punishment shall be in accordance with the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)]

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

Reasons for sentencing

1. The range of applicable sentences: Imprisonment for not less than seven years to 15 years; and

2. Scope of recommended sentencing guidelines;

[Determination of Type] Type 2 in the event of robbery, injury, or robbery (Special Robbery)

[Special Aggravations] Aggravations: serious injuries, teachers against the person under command.

[General Aggravation] Aggravations: planned crimes, motive for criticism

[Scope of Recommendation] Aggravation: Imprisonment for 6 years to 10 years

3. Determination of sentence: Ten years of imprisonment; and

The defendant, as the president of the reconstruction association, planned the crime of robbery and injury against the victim who appears to be in conflict with himself/herself, led the active crime by selecting the executor, ordering the execution of the crime, etc., and after committing the crime, there was a significant result of the victim's death.

Although the Defendant is not liable under the law for the death of the victim, considering the fact that the crime of this case was not affected by the death of the victim, and that the Defendant did not take appropriate measures to avoid the pain of the bereaved family members, the Defendant cannot be exempted from the sentence identical to the disposition, and is sentenced as the disposition by taking into account various sentencing conditions indicated in the records, such as the age, character and conduct, environment, motive of the crime, and the result after the crime.

The acquittal portion

1. Summary of the facts charged

The defendant knew that the victim could die in the course of committing the crime, he was hospitalized in the hospital of 2 to 3 months, and told 00 the victim to be hospitalized in the hospital of 2 to 3 months, so that he could see it as unrelated to the union. The Kim 00, who was proposed to commit the crime from 00, as in the criminal facts in the judgment, was 10 meters away from 10 meters of the victim's money back and prepared for the victim's money back to 10 meters, and 100,000 won of the cash 10,000 won of the victim's money back to 10,000 won of the victim's money back to 10,000 won of the victim's money back to 10,000 won of the victim's clothes.

Accordingly, on May 11, 2004: around 30 : 00 Mancheon University Hospital, the victim was sent back to the hospital and received treatment in a mixed state on May 21, 2004; around 04:07, the victim died at the hospital’s middle-patient.

Accordingly, in collusion with the defendant 00, Kim 00, the defendant took the victim's property by taking advantage of the victim's property and living the victim.

2. The gist of the defendant's lawsuit;

The defendant did not have the intention to kill the victim, and did not conspired to kill 00, Kim 00 and robbery, and there is no causal relationship between the death of the victim and the price act of Kim 00.

3. Determination

A. Whether the Defendant had the intent to kill the victim, and whether the Defendant conspireds with the accomplice to commit robbery

(1) According to the above evidence, the following facts are recognized.

① The instant crime began with the Defendant’s proposal. In order for the victim who had a conflict with himself due to the instant rebuilding agreement audit to prevent him from going to the meeting of the association, the Defendant sent off the instant case to the OO to the extent that the victim was hospitalized for 2 and 3 months, so that he could not be present at the next meeting. The victim would be able to appear at the time of the victim, and the Defendant told Hah Hah h, regardless of the association.

② As above, 00, upon receiving the proposal for the crime from the Defendant, the head of the partnership asked Kim 00 to take the person into consideration, and proposed the crime.

③ 김00이 범행을 승낙하자 , 오00은 ' 조합과 관계없이 보이게 하기 위해 강도로 위장하는 것이 좋겠다 ' 는 취지의 말을 피고인으로부터 듣고 , 김00에게 ' 어두울 때 퍽치기처럼 뒤에서 한 대 때려주고 와라 . 피해자가 얼굴을 보면 곤란하니 뒤에서 한 번에 정확히 때려라 ' 고 말하였다 .

④ On the other hand, in this court, 00 stated that "the defendant's price of a specific part of the victim is the victim's price." However, 00 stated that "the specific part of the victim is not memory."

⑤ On the day of the instant crime, the 00th day of the instant crime, prepared for each item to be used in the crime and proposed to use the item to Kim 00, Kim 00 refused to do so, and the 00th day of the 00th hand hand hand, which is weak. However, Kim O said that it would be the first hand hand hand, even though the 1st day of the instant crime.

④ After that, Y0, Kim 00, who parked a motor vehicle at the place of the instant crime, waiting for the victim, took a cement brick that was far away from the chemical team again, and decided to pay the victim the price. Accordingly, Kim 00 stated to the effect that she was able to take the victim as hand from the prosecutor’s office, and that she was able to use the brick as if she was well in a department (Article 983, 1018, 1774 pages), and that she was able to use the brick as if she was well in a department (Article 983, 1018, 1774 pages of the investigation record), she was present as a witness in the instant case, which was a robbery against Defendant O-O0, this court No. 2014Gahap1499, and she was able to recommend each item, and she was able to see the wall, and she also she was able to her her her00 son.3).

7) The victim appeared at the place where the crime of this case was committed, and Kim 00 argued that the victim followed the victim at once, and that the victim saw the front part of the victim's head by a refluence of the victim's head by an unfluent method, and that the victim saw the front part of the victim's head as being refluenced by a refluenced by a refluence of the head of the police, and that the front part of the victim's head was blicked by a refluence of the head of the math, and that the wall flick was blick with soil. The prosecutor argued that the flick used for the crime of this case at the scene of the crime of this case was flicked by a natural stone, and that it was difficult to recognize that the 0th of the 0th of the 0th of the 0th of the 0th of the flick, and that there was no other evidence that the 0th of the 0th of the 0th of the m.

8. As a result, there was an injury to the victim's left-hand edge, such as an inspection and a part of the body frame, and there was no injury to the victim's head in the back part.

① After committing the instant crime, the OO received money between KRW 1.5 million and KRW 2 million respectively in return for committing the instant crime (a prosecutor asserts to the effect that the Defendant, upon request from 00 to 1, May 17, 2004, additionally remitted KRW 3 million in return for committing the instant crime to O00. However, the Defendant, O0, and O0, stated that the Defendant, O00, and O00, paid in cash in a plaza entertainment room and received the money, and that at the time of 00 and Ma00, the Defendant provided that there is no evidence to deem that the said KRW 3 million was a consideration for committing the instant crime.

(2) The following circumstances revealed in the above facts: ① The defendant was unable to appear at the meeting of the cooperative because he was hospitalized in the hospital; ② the defendant attempted to kill the victim; ② the contents stated to 00, and the contents conspired with her Kim 00, which the defendant attempted to kill the victim; ③ there is no evidence suggesting that each item of the crime prepared to use 00, was large or short enough to cause the death of the adult male; ② even if the defendant intended to use 00, it is difficult to readily conclude that the defendant's remaining head was killed in excess of the degree of 00, and that there was no evidence suggesting that the defendant would have died at the time of his death, ② The defendant would have refused to use the 00, 400, 400, 400, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 4.

B. Whether there exists a causal relationship between the price act of KimO and the victim's death

(1) As evidence corresponding thereto, there is a testimony of 00 a witness re-appraisals the cause of the victim's death and an appraisal statement prepared by the said witness.

In this Court, the witness Lee 00 appears to have not caused any damage by offsetting the force that can be delivered in the front and following the brain because the victim had paid two parts of the body, even though he was paid the price of the body to the extent that the two parts of the body were to be caused, and then he had the two parts of the body, immediately after the victim was paid the two parts of the body, and then caused the throgate sexual intercourse movement after the brain was delivered. ② According to the MRI image taken by the hospital after the victim was damaged by the crime of this case, there was a change in image that could be suspected of smoking in the upper part of the body above the body above the body below the body below the body below the body below the body below the victim, and ③ The victim made a statement to the effect that the body below the body below the body of the body of the victim and the body below the body below the so-called "the body below the body below the body of the victim so that the thale and the body below the body below the death."

(2) However, in light of the following facts that can be acknowledged by the above evidence and the circumstances surrounding the aforementioned evidence, the above evidence can be sufficiently able to explain the cause of the victim’s death, but it is difficult to readily conclude that the victim died due to the price Kim 00.

(1) The witness 00 did not directly examine the body of the victim, and presented an appraisal opinion based on the data, such as medical records, investigation records, etc. after the ten-year period from the date of occurrence of the case.

② In the case of death due to excessive digging, the victim of the instant case did not have any damage to the conjection and the base beer of the instant case. In the case of the victim of the instant case, the victim did not have any damage to the conjection and the base beer.

③ Death due to excessive refrigeration occurs when prices generally difficult to expect, and there is little possibility that the price may be predicted and the price may be generated, and the return of trees after the first price, and the return of trees to trees is light.

However, after the first price, Kim 00 made a statement that "after the victim saw the snow as a second-lane, the victim saw the snow, and the second price in such a situation, it is difficult to see that the second price in such circumstance falls under the price in the unexpected situation, and it is difficult to recognize that the victim returned his body, not the item, after the victim was paid the first price, and it is difficult to recognize that the victim was able to see the Kim 00 (the victim who was a victim who wears legs on the right side bucks (the victim who saws on the side bucks lower than the body after the first price, seems to be a more prompt reaction).

1 ④ 위 증인의 증언 및 감정서에 의하면 , 피해자에게 두개골 골절 [ 전두개와 ( 前頭蓋窩 ) 부위에 국소골절 ] 이 있는데도 뇌손상이 없었다는 것은 1차 가격을 당할 당 시 후두부를 손바닥과 같이 부드러운 면을 가진 물체로 맞았을 것이고 , 1 , 2차 가격은 거의 순간적으로 일어나야 한다 .

그러나 , 이 사건 범죄사실과 같이 1차 가격이 어떤 방법으로 이루어졌는지 특정하기 어렵고 ( 앞서 본 경위에 비추어 볼 때 , 1차 가격 당시 김00이 손바닥 같이 부드러운 면 을 사용하여 상대방의 뒷머리를 때려 기절시키려 했다고 인정하기는 더 어렵다 ) , 범죄 사실에 나타난 경위에 의하더라도 , 김00이 처음부터 2차례의 가격을 예상하고 , 1차 가 격의 수위를 조정한 이후 뒤를 돌아보는 피해자를 2차 가격하였다고 보기도 어려울 뿐 만 아니라 , 이 사건에서 1 , 2차 가격의 시간적 간격이 순간적으로 이루어졌다고 인정하 는 것은 이례적인 상황으로 보여서 , 실제 범행과정이 위 증인의 증언 및 감정서에서 상 정하는 상황과 일치한다고 인정하기 어렵다 ( 김00은 피해자의 심장이 정상 남자에 비해 비대 ( 肥大 ) 하고 중증도의 관상동맥경화가 있음을 근거로 ' 관상동맥경화에 의한 허혈성 심질환 ' 을 사망의 원인으로 판단하였는데 , 그 판단에 의학적으로 의심할 만한 사정이 있 고 , 거기에 피해자가 김00으로부터 벽돌로 머리를 가격당하여 두개골 골절 [ 전두개와 ( 前 頭蓋窩 ) 부위에 국소골절 ] 이 일어난 직후 바로 쓰러져 의식을 잃었으며 , 그로부터 약 34 분 정도 후부터 실시한 6분 정도의 심폐기능소생술 결과 자발적 혈액순환이 나타나서 10일 정도 생존하다가 사망한 사실을 더하여 보면 , 피해자가 이 사건 범죄사실과 같은 행위로 인하여 사망하였다고 의심할 만한 정황이 된다 하더라도 , 앞서 본 바와 같이 증 인 이00의 증언 및 그 작성의 감정서에도 부검과정에서 나온 피해자의 상태 ( ②부분 관 련 ) 및 범죄사실에 나타난 김00의 피해자에 대한 가격과정 ( ③ , ④부분 관련 ) 과 일치하 지 않는 면이 있어서 , 그에 전적으로 의지하여 피해자가 김00의 가격에 의한 ' 과신전 과굴절 ' 로 인한 연수압박으로 사망하였다고 단정하기도 어렵다 ) .

(3) There is no other evidence to acknowledge that the victim died at the price Kim 00.

4. Conclusion

Therefore, this part of the facts charged against the defendant shall be sentenced to innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act because it is a case where there is no proof of a crime. However, the facts charged are included in the charges of strong injury, and the defendant is guilty of the injury resulting from robbery, so long as the trial on this case was conducted due to the dispute about the conspiracy of robbery, it shall not be disadvantageous to defense even if he is found guilty of the injury resulting from robbery without changing the indictment, and so long as the defendant is found guilty of the injury resulting from robbery in the judgment, the facts charged in this part shall not

Justices Kim Sang-dong

Judges Jin-young

Judges Lee Sung-sung