(영문) 서울중앙지방법원 2018.11.21. 선고 2018고합520 판결

On August 26, 2015, the Defendant was sentenced to imprisonment of one year and two months with prison labor at the District Court for fraud, etc. on August 26, 2015. On June 21, 2016, the Defendant completed the execution of the sentence at the Detention House.

[Criminal Facts] C (Detention on April 19, 2018) from March 2017 to May 2017, 2017: (a) installed pressure valves and high voltages around the pipelines managed by B, which are buried near the Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu; and (b) connected high voltages to the oil stations, and connected them with the storage tank by installing pressure valves, weight gauge, powder, powder, etc. in the oil stations.

around May 2017, upon receipt of a proposal, the Defendant: (a) agreed with C whether to sell petroleum; and (b) agreed with C, from May 2017 to August 30, 2017, the Defendant used the aforementioned wholesale facilities to move petroleum transported into the oil pipeline from around May 201 to the above oil reservoir storage tank; and (c) in collusion with C, the Defendant used the oil pipeline to cut off the oil owned by the victim FF Co., Ltd. owned by the said Corporation at a price equivalent to KRW 39,660,00 of the market price of KRW 39,660,00 and KRW 51,607,000 via the market price of KRW 51,00,000, the market price of which is equivalent to KRW 55,607,000,000, which is the sum of the market price of the oil pipelines owned by the Defendant.

Summary of Evidence

1. Partial statement of the defendant;

1. Part of C’s legal statement;

1. Second prosecutor's protocol of examination of the accused;

1. A copy of the investigation report (related to overall conditions, such as the installation of a gas station facility at the time of the crackdown), a copy of the investigation report (related to oil pipelines and E-gas storage facilities), a copy of the investigation report (related to the composition of the E-gas station oil site), a copy of the investigation report (related to the organization of the E-gas station oil site), a copy of the investigation report (related to the quantity of flow and the amount of sale);

1. Photographs;

1. Previous convictions: Criminal records, investigation reports (verification of the period of repeated crimes A), personal confinement status, and judgment;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 13-2(1) and 13(1)2 of the Oil Pipeline Safety Control Act, and Article 30 of the Criminal Act (Selection of Imprisonment);

Article 35 of the Criminal Act

1. Dismissal of application for compensation;

Article 32(1)3, and Article 25(3)3 and 4 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the existence and scope of liability of the accused is unclear and it is not reasonable to issue an order for compensation in criminal proceedings)

1. The grounds for sentencing: Imprisonment with prison labor for not less than two years nor more than twenty years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of thief] Type 2 of thief Act on Special Property (high value property)

【Special Convicted Person】

[Decision of the Recommendation Area] Basic Field, 2 years to 4 years

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

The crime of this case was committed in collusion with C by using special facilities installed by C on the oil pipelines managed by C, and is likely to lead to a large-scale accident, such as explosion of oil pipelines or fire, and the leakage of oil due to the damage of oil pipelines, and pollution of surrounding soil, etc. The Defendant committed the crime of this case during the period of repeated crime. The Defendant committed the crime of this case during the period of repeated crime. If the instant crime was not discovered due to the control of B, the Defendant appears to have continued to commit the crime of theft of petroleum. Moreover, if the Defendant was excluded from the return of gasoline 12,695 liter, via 2,57 liter, which was seized at the time of detection of the crime, was not recovered from damage to the victim.

The favorable circumstances of ○: The Defendant appears to have recognized and against the fact that he stolen petroleum itself. While there are many records of criminal punishment due to fraud, etc., the Defendant did not have any history of criminal punishment due to the theft of petroleum. The Defendant participated in the crime of the theft of petroleum upon the proposal of C, but did not directly participate in the installation of the facility.

The acquittal portion

1. Summary of the facts charged

From the end of May 2017 to August 30, 2017, the Defendant, in collusion with C, stolen the gasoline amounting to KRW 135,95,90 of the market price of the Victim F Co., Ltd., which is equivalent to KRW 179,737,790, and the market price of KRW 329,564,031, which is equivalent to KRW 300,429,30,329, and KRW 328,328, from the market price of KRW 509,436,328, which is equivalent to KRW 179,737,790.

2. Determination

A. The burden of proving the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the Defendant, the interest of the Defendant ought to be determined (see, e.g., Supreme Court en banc Decision 2008Do11, Jan. 20, 201).

B. According to the evidence duly admitted and examined by the court, ① the total amount of petroleum sales of the above gas station confirmed from the end of May 2017 to August 30, 2017 through the sprink of the above gas station from the end of May 2017 to the end of August 30, 2017, the total amount of 58,423 liter, gasoline 303,959; ② petroleum sales of oil shall be purchased and sold at the petroleum agency, etc. officially licensed at the oil station; ② in such a case, the total amount of petroleum purchase of the gas station was reported to the Institute. 30 liter 30 liter 288,00 liter 30, 168,00 liter 30 liter 280 liter 96 liter 30,50 liter 280 liter 285 liter 205 liter 380 liter 284.

C. However, in light of the following circumstances, it is insufficient to recognize that the aforementioned facts acknowledged or the evidence presented by the prosecutor alone exceeded 81,000 2 as stated in the facts constituting a crime by the Defendant, and there is no other evidence to support the theft of petroleum by 436,3821.

1) There is no specific ground to acknowledge that the difference between the above sales amount and the sales amount was caused by the total theft of petroleum.

2) Rather, the J, a different gas station in Gyeonggi-do, which was operated by the Defendant at the time of the above painting period, provided petroleum as non-material for the transaction of non-material petroleum in the vicinity of Seocheon-si, in accordance with the Defendant’s instructions at this Court. Some of them stated to the effect that the petroleum was supplied as E stations. The difference between the petroleum sales and the purchase volume of the E station is difficult to exclude the possibility because the petroleum purchased as non-material is included in the foregoing.

3) The Defendant, at the 4th suspect interrogation, stated that “C’s deduction of oil from the oil pipelines was 81,00,000 square meters of oil oil before oil oil oil tanks and then delivered the price corresponding to the difference to C in cash. According to the confirmation at the time, the stolen petroleum stated that “the total amount of 80,000 liter of heavy gasoline 30,000 liter and light oil 50,000 liter (Evidence No. 2741,2742 of the evidence record)” (Evidence No. 2741,2742 of the evidence record), and later, during the 2nd suspect interrogation, the Defendant stated that the total amount of oil flow was 81,00,000, on the basis of the contents of cash withdrawal on each day and the amount paid in return (Evidence No. 2811 of the evidence record), and in this court, the amount of oil flow stated in the prosecutor’s account was supported by the Defendant’s objective data that was withdrawn from the account.

4) As seen earlier, C stated that the difference between the purchase quantity reported to the Institute during the third police interrogation and the quantity of spoke weather sales would be the flow quantity. However, C stated that even at the time of the third police interrogation, C did not know the accurate flow at the time of the third police interrogation. The second prosecutor’s interrogation (Evidence No. 2843, 2844) and the second prosecutor’s interrogation (Evidence No. 2843, 2844) reversed C’s statement that the degree of flow would be about 20,000, and the frequency of flow would be about 7 times. In addition, C did not participate in the operation of the Ejuri station for the above gambling period. As such, C’s statement at the time of the third police interrogation is deemed to have been made by a vague trend.

3. Sub-resolution:

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, it should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the facts charged within the scope of the above facts charged

Judges

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

Note tin

1) The Defendant, at the fourth police interrogation, is about 30,00 liters via 50,000 liters a total of 80,000 liters in the capacity of gasoline (fliter) and 50,000 liters in a approximate manner.

(Evidence No. 2741) The current account (Account No. H) of the G Bank (Evidence No. 2741) used in the gas station in the second interrogation of the prosecution.

Based on the content of gold withdrawal, each day’s flow was specifically identified as 81,00 liter as indicated below (Evidence Records 2811 pages);

The total amount of flow shall be recognized as 81,000 liters according to the statement at the prosecution of the accused, and in relation to the flow of flow by type of oil, it shall be favorable to the accused.

For gasoline, 30,00-liters and light oil 51,000-liters each specific recognition shall be made.

A person shall be appointed.

2) The investigative agency shall provide the Defendant with a favorable volume, taking into account that the market price of the petroleum is changed every day (the purchase volume and inventory of petroleum at the gas station).

The lowest selling price, i.e. gasoline 1, confirmed by means of a calculation system used to process high quantities, sales status, etc.

The market price of petroleum was calculated by applying 1,322 won per L, and 1,097 won per diesel (Evidence records 2509 pages), and 81,000 of the above Do flow ( Gasoline)

Gasoline 39,660,000 LX 1,322) The market price of petroleum calculated by applying the above price to 30,000 liter, light oil 51,000 liter (=30,000 LX 1,322)

5,947,00 won (=51,00 liter x 1,097 won) total of 95,607,00 won. However, the above amount, which is the amount paid by the defendant to C in return for milk

11,050,000 won in the Schedule. However, since the calculation method of the investigative agency is more favorable to the defendant, petroleum is in accordance with the calculation method of the investigative agency.

As above, the market price of gasoline shall be 39,660,00 won in total, 55,947,000 won in total, 95,607,000 won in total.

참조조문

-소송촉진 등에 관한 특례법 제25조 제3항 제3호

-소송촉진 등에 관한 특례법 제32조 제1항 제3호

-송유관 안전관리법

-송유관 안전관리법 제13조 제1항 제2호

-송유관 안전관리법 제13조의2 제1항

-형법 제30조

-형법 제35조

-형사소송법 제325조

참조판례

-대법원 2010. 10. 29. 자 2008재도11 전원합의체 결정

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