[1] Whether the crime of robbery is established in a case where a person kills a creditor with intent to evade his/her debt, but is merely temporarily relieved of the creditor's rank (negative)

[2] Requirements for the establishment of robbery

[3] The case holding that the act of taking property based on a separate criminal intention after a considerable time after the murder cannot be punished as robbery by combining it with the act of homicide prior to the murder

[1] To establish robbery, first of all, the establishment of robbery must be established. To establish robbery, there must be an intent of unlawful acquisition (or unlawful acquisition) in order to obtain the crime of robbery. In order to recognize the so-called "acquisition of profit on property" under the latter part of Article 333 of the Criminal Act, which is the requirement for the crime of forced acquisition, under the latter part of Article 333 of the Criminal Act, a situation must be where property gains have been actually transferred to a criminal or a third party at a disadvantage against the victim. In addition, in a case where the existence of an obligation is apparent and the heir exists and the method of confirming the existence of a claim is secured, even if an obligee is murdered with the intent of evading the obligation, it is temporarily exempted from the obligee's trend, and it is difficult to view that the control of profit on property has been transferred from the creditor to the future, and in such a case,

[2] The crime of robbery is established when a robbery commits robbery with an opportunity to commit robbery. Thus, the crime of robbery is required to be committed in the stage where the crime of robbery is committed during the commission of robbery, or immediately after or after the commission of robbery, and at the stage where it can be deemed that the crime of robbery has not been completed by social norms.

[3] The case holding that if the defendant had an intention to illegally obtain money and credit cards owned by the victim after a considerable time after the death and the crime of murder was completed after the death, the act of taking property based on a separate criminal intent after a considerable time after the death cannot be punished as robbery by combining it with murder prior to the murder and robbery

[1] Articles 33 and 338 of the Criminal Act / [2] Article 338 of the Criminal Act / [3] Article 338 of the Criminal Act

[1] Supreme Court Decision 86Do776 delivered on June 24, 1986 (Gong1986, 977) / [2] Supreme Court Decision 96Do1108 delivered on July 12, 1996 (Gong199Ha, 2569)

Defendant

Defendant

Attorney Park Yong-chul

Daegu High Court Decision 2003No589 delivered on January 29, 2004

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. The lower court, based on its employed evidence, determined that the Defendant murdered the victim in such a way as to avoid paying the obligation to the victim by murdering the victim in a timely manner, barring him/her from paying his/her obligation, and taking back the back head part of the victim’s back with a watch keeping away from the bed, etc., and that he/she forcibly taken the victim’s cash amounting to KRW 1.2 million within the bed of the victim’s money and one wall containing credit cards, etc., and maintained the judgment of the first instance court that caused the Defendant to commit robbery.

2. However, this decision of the court below is not acceptable.

A. To establish robbery, first of all, the establishment of robbery must be established. To establish robbery, there must be an intent of unlawful acquisition (or illegal acquisition) in order to obtain the crime of robbery (see Supreme Court Decision 86Do776, Jun. 24, 1986). In order to recognize "acquisition of property benefits, which is the requirement for the so-called forced acquisition as stipulated in the latter part of Article 333 of the Criminal Act, the acquisition of property benefits must be made in a situation where the victim has actually been transferred to the offender or a third party at a disadvantage. In addition, in a case where the existence of the debt is apparent and there is a creditor's heir and the method of confirming the existence of the claim is secured, even if the obligee murders with the intent to evade the debt, it is temporarily exempted from the creditor's position, and it is difficult to view that the control of property benefits has been transferred from the creditor's side to the offender, and in such a case, the crime of robbery cannot be established.

However, according to the records of this case, it is difficult to readily conclude that the defendant murdered the victim for the purpose of evading his/her obligation for the loan, rather than the defendant's assertion, it is reasonable to deem that the victim's act of murder was committed by causing serious insult of the defendant while refusing the defendant's request to postpone his/her obligation for the repayment of the loan. Although the loan certificate was not prepared between the defendant and the victim, one of the heir of the victim had already been aware of the existence of the loan claim against the defendant because he/she had already been transferred to the victim. Thus, even if the defendant murdered the victim for the purpose of evading his/her obligation for the loan, it is merely temporary removal from the victim's rank, and therefore, it cannot be said that the robbery crime of robbery was established immediately.

B. Meanwhile, it is difficult to readily conclude that the Defendant took the victim’s property by taking the victim’s property after killing the victim.

According to the records, the defendant found that the body of the victim was loaded in the vehicle that the victim gets on board immediately after murder, and found the body of the victim's body, and then the victim's identity was revealed when the body of the body is discovered, and then put the wall in the body of the vehicle into the body of the victim for hiding it (in this case, it is difficult to recognize the defendant's intent to illegally obtain the property belonging to the wall until this time), and 15 hours after the 10:0 hours passed thereafter, when the vehicle was returned to the scene of the crime at around 10:0 on the following day, the defendant paid 10,000 won of the money remaining in the wall and the part of the victim's part of the part of the body of the vehicle. Since the body of the body of the victim was found, it was thought that the money of the wall can not be used by milching into the smoking, and then the amount of money collected from the price of the container and the price of the vehicle can be discarded from the knish.

The crime of robbery is established when a robbery commits robbery with an opportunity to commit robbery. Thus, the crime of robbery is required to be committed in the stage where the crime of robbery was committed during the commission of robbery, or immediately after the commission of robbery, or immediately after the commission of robbery, and at the stage where it may be deemed that the crime of robbery was not completed by social norms (see Supreme Court Decision 96Do1108, Jul. 12, 1996). In addition, it is reasonable for the Defendant to have the intent to obtain unlawful acquisition of money owned by the victim and credit cards after a considerable period of time after the murder was completed, and it is deemed that the act of taking property based on a separate criminal intent after a considerable period of time after the murder was completed, and thus, it cannot be punished as the crime of robbery by combining the murder with the murder prior thereto.

C. Nevertheless, the court below maintained the judgment of the court of first instance against the defendant as the crime of robbery on the grounds as stated in its holding. Thus, there is no error of law by misunderstanding of facts or misunderstanding of legal principles as to the establishment of the crime of robbery due to violation of the rules of evidence.

3. Therefore, the part of the judgment of the court below as to robbery should be reversed, and since the judgment of the court below, together with the above, sentenced the defendant to a concurrent crime under the former part of Article 37 of the Criminal Act, the whole judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination, it is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)