2018Gohap300 Robbery, interference with business, damage to property

A South 84. Symar

Kim Jong-gi (Lawsuits of Prosecution) and Lee Jong-young (Public Trial)

Law Firm $$$ 10

Attorney* *

September 20, 2019

A defendant shall be punished by imprisonment for four years.

Criminal facts

1. Injury by robbery;

The Defendant borrowed KRW 7 million from July 8, 2017 to September 2017 to the victim B with gambling funds. However, the Defendant received only KRW 5,300,000 from the victim and received reimbursement from the victim. From January 8, 2018 to around 10 days, the contact with the victim was closed, and the victim was found to receive the remainder of money that was not repaid to the victim.

On January 18, 2018: at least 00, the Defendant: (a) 02: (b) 00 another on the road for the entertainment drinking house located in Ulsan-gu; (c) ○○○○○○, using his cellular phone, visited the victim; (d) putting the victim on the top of the vehicle driven by the Defendant, moving the said vehicle to the front of the amusement drinking house; and (e) opened a auxiliary gate to the front of the said vehicle; and (e) ring the said vehicle to the front of the said entertainment drinking house, the Defendant: (c) 1: (d) 200, the Defendant: (d) 1: (e) 30,000,000 a son’s face; (e) 7:0,000,000 won of the son’s head; (e) 3:0,000,000 won of the said vehicle; (e) 7:0,000,000 won of the said vehicle; (f) 3:

As a result, the Defendant took the victim's property by force and thereby inflicted an injury on the victim, such as a shoulder that requires approximately 14 days of worth, and the straw of the above arms.

2. Interference with business;

The defendant 208. 10 am knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife, knife knife knife knife knife knife knife knife knife knife knife knife knif.

Accordingly, the defendant interfered with the operation of the above main points by force for about 45 minutes.

3. Damage to property;

The Defendant avoided disturbance, such as the date and time, place, as described in paragraph (2) above, and accompanied by one monitor with a market price of 200,000 won owned by the entertainment tavern operator as described in paragraph (2) above, and one large slab operator with a market price of 50,000 won as its head.

Accordingly, the defendant damaged the victim's property.

Summary of Evidence

Omission

Application of Statutes

1. Relevant Articles of criminal facts;

Article 337 (Bodily Injury by Robbery) of the Criminal Act; Article 314 (1) of each Criminal Act (Interference with Duties) and Article 366 of the Criminal Act

Article 2 (Objects of Property Damage and Damage)

1. Competition;

Articles 40 and 50 of the Criminal Code (Mutual Crimes of Interference with Business, and Criminality)

Punishment provided for in the crime of Interference with Business

1. Selection of penalty;

As to the crime of injury by robbery, choice of imprisonment with prison labor for limited term, the crime of interference with business, and the crime of causing property damage;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be defined as the crime of robbery and bodily injury with the most severe punishment.

Aggravation of concurrent crimes within the scope of the aggregate of the maximum amounts of each offense above punishment

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. The summary of the argument (the part concerning the robbery and injury under paragraph (1) of the facts charged);

Recognizing the fact that the victim inflicted an injury by assaulting the victim, this is merely an assaulting the victim by failing to receive any contact with the victim, and did not have any intent to collect money. It is merely a receipt of the money given by the victim, and does not pay the money from the victim.

2. Determination

A. Relevant legal principles

In the crime of robbery, the degree of assault and intimidation must be the degree to which the other party's resistance is objectively forced or unable to resist (see, e.g., Supreme Court Decision 2001Do359, Mar. 23, 2001). The crime of robbery is established by inflicting an injury on the opportunity of robbery. Thus, the crime of robbery is established by the act of inflicting an injury on the opportunity of robbery. Thus, the crime of robbery is established at any stage that can be deemed to have not been completed in light of social norms after the commission of robbery or immediately after the commission of the crime or immediately after the commission of the crime of robbery. (See Supreme Court Decision 2004Do1098, Jun. 24, 2004). If the robbery causes an injury not only by an assault as a means of taking property, but also by an opportunity of robbery, the crime of robbery is established (see, e.g., Supreme Court Decision 2004Do684, Apr. 27, 1986).

B. Specific determination

The key issue of this case is whether the defendant simply did not pay the victim with money at the time of assaulting the victim, and whether the defendant had the intention to divorce the victim, or whether he/she had the intention to forcibly take the part, and if so, whether he/she had the intention to do so. In light of the aforementioned legal principles, the following circumstances acknowledged by each evidence duly adopted and investigated by the court are acknowledged, the defendant can be recognized as having committed an intentional assaulting the victim to forcibly take part in the property and received money. Accordingly, the defendant and his/her defense counsel's assertion cannot be accepted.

(1) The victim received three-time investigations from an investigative agency, and instead made a statement that corresponds to the facts charged. At the time, the content of the victim’s statement is relatively consistent, and it includes a specific content that is difficult to make a statement that is not directly experienced.

(2) Nevertheless, when the victim came to this court, “the Defendant paid money in return for the payment of money to the Defendant.” The victim’s legal testimony appears to be difficult to believe that the victim’s testimony was in fact and, in full view of the following circumstances, it seems that the victim’s statement made in an investigative agency is more trustable.

① The reason why the initial case was brought into the instant case is not the victim’s active accusation, but the police officer in charge of obtaining the victim’s intelligence, who obtained the victim’s statement because of concerns over retaliation against the defendant, initiates investigation by obtaining statements from several times, and making it difficult to find any motive or reason that the victim would actively mislead the defendant.

② The victim is not only unable to give a sufficient explanation about the background leading up to the reversal of the statement made by an investigative agency in the court. Moreover, the content of testimony that the victim directly provided money to the victim in order to repay the money borrowed from the Defendant even though he/she owned an entertainment drinking house, not his/her own property but also his/her own property, is difficult to obtain.

③ From the day immediately after the instant case, the Defendant appears to have threatened the victim to prevent the victim from filing a complaint with an investigative agency. The victim agreed with the Defendant after the instant prosecution was instituted.

( 3 ) 이 사건 범행을 목격한 E도 수사기관에서 , " ○○ 유흥주점 안에 있다가 밖으로 나가보니 , 피고인이 피해자를 골프채로 때리려고 하기에 말렸다 . 피고인이 강제로 피해 자의 바지와 점퍼 주머니를 뒤졌고 , 현금 뭉치가 나오니 돈을 세어 가져갔다 . 피해자의 양쪽 얼굴이 부어있었고 , 코에서는 피도 나고 , 상당히 겁에 질려 있는 상태였다 " 고 당 시 상황에 대하여 구체적으로 진술한 바 있고 , 진술경위에 대해서는 당시 피고인으로 부터 회유 내지 협박을 당했지만 , 피고인이 괘씸해서 사실대로 말하는 것이라고 진술 하기도 하였다 .

Nevertheless, in this court, E also sees that “the defendant gets paid money, and the victim may know whether or not he was the victim’s money. When considering the price, the defendant was aware that there was a reduction in the amount of money.” In other words, the statement to the purport that “the victim was making the victim pay the money,” and the statement to the effect that it is not sufficient to explain the reason for the reversal of the statement, but it is not possible to explain that the defendant and the victim reached this court after the public prosecution was instituted, or after the witness summons was issued with the witness summons, and was present at this court after receiving the decision of the fine for negligence without any justifiable reason. If it is inconsistent with the big gap between the testimony of the investigation agency and the reversed testimony, the statement of the investigation agency as to how to witness the crime was committed, and whether the defendant was the above golf loans, it seems that the statement of E is more reliable to the investigation agency.

(4) The Defendant sought several times to receive money borrowed from the victim to ○○ Entertainment that the victim works for the victim, and stated that he/she went to the above main points to meet the victim on the day of the instant case.

(5) In the victim’s investigative agency and legal statement, the statement that alternatively coincides with the victim’s statement is deemed to be sufficient to suppress the victim’s resistance. During that process, the Defendant: (a) provided that she would have paid money to the victim when she was headed with drinking and drinking; and (b) provided that she would not bring her money to the victim by drinking her; and (c) provided her money to her; and (d) provided her money to her; and (e) provided her money to her; (b) the Defendant continued to engage in her assault while her assaulting the victim and giving money; and (c) provided her continuous assault and golf loans to the extent that she would suppress the victim’s resistance; and (d) in full view of the fact that the Defendant did not lend money to the victim’s her will and paid money to her money to her, it is reasonable to deem that the Defendant had expressed his/her intention to do so at the same time when she made a divorce with the victim or the victim.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment with prison labor for not less than three years and six months to 19 years; and

2. Scope of recommended sentences according to the sentencing criteria; and

(a) Class I crime (Bodily Injury by robbery);

[Determination of Type] 02. In the event of the occurrence of an injury, a general robbery

[Special Convicts] Reductions: Non-Punishments

[Recommendation and Scope of Recommendations] Reduction Area, 2 years to 4 years of imprisonment

(b) Second crime (Interference with business).

[Determination of Type] Interference with Business 01. Interference with Business / [Type 1]

[Special Convicts] Reductions: Fluor (including serious efforts to recover damage)

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to eight months

(c) A third crime (a property damage and damage);

[Determination of Type] Destruction of Property / General Criteria / [Type 1] Destruction of Property, etc.

[Special Sentencings] Reductions: In a case where significant damage has been recovered from punishment;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to six months

(d) Scope of recommendations according to standards for handling multiple crimes: Imprisonment with prison labor for a period of two years to four years.

(1) The maximum limit of crime + 1/2 + the maximum limit of crime 3 + 1/3)

(e) Scope of recommendations that have been modified according to the applicable sentences: Imprisonment with prison labor for a period of three years and six months from June to four years.

(The lowest limit of the sentencing range recommended by the sentencing criteria is inconsistent with the lower limit of the applicable sentencing range by law.

w) Since it is in accordance with the lower limit of applicable sentences in law; and

3. Determination of sentence;

The crime of this case was committed by the Defendant by taking advantage of the victim’s property, causing injury to the victim, interfering with the bar business business, and destroying property located therein. In light of the circumstances of the crime, the nature of the crime is very poor, interference with the business in 2015, and interference with the business in 2018, each fine was sentenced to suspended execution due to the violation of the Punishment of Violence, etc. Act in 2010 (a group, deadly weapons, etc.) but there is a high possibility of criticism again for each of the crimes of this case. In particular, the crime of robbery was not seriously against the victim, threatening the victim not to report it to the investigation agency, threatening the victim not to report it to the investigation agency, and the circumstances are not good after the crime are committed.

However, considering the fact that the victims of the crime of interference with business do not want the punishment of the defendant, the fact that the victims of the crime of interference with business have compensated for the damaged relic, the fact that they have agreed with the victims of the crime of interference with business, the defendant's age, character and conduct, environment, motive and background of the crime, means and method of the crime, and circumstances after the crime, etc., the punishment as ordered shall be determined by comprehensively taking into account all the conditions of punishment as shown in the records

Judges Park Young-young

Judges Kim Dong-dong

Judges Sulraia