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(영문) 대구고등법원 2018.12.20 2018노394
강도등
Text

1. Of the lower judgment, the part of the lower judgment on the charge of attempted larceny against victim D is reversed.

In this case.

Reasons

The gist of the grounds for appeal is as follows: (a) the Defendant alleged that there was no mistake that there was no crime of fraud in relation to the Defendant’s fact-finding or misunderstanding of the legal principles (the larceny against AO in 2017, 65) on the grounds of appeal regarding “the fraud of the victim I in 2017, Gohap 59,” but on the first trial date, the Defendant alleged that there was no mistake that there was no crime of fraud; (b) on the grounds of appeal, the Defendant alleged that the mistake of the facts as to the above part was explicitly withdrawn; and (c) stated that only “the larceny part against AO” was “the larceny part against the victim,” and that the remainder of the facts found guilty in the lower trial are all recognized.

The grounds of appeal are examined to the extent of supplement in case of supplemental appellate briefs not timely filed.

The defendant was unable to repay 6 million won since he borrowed 6 million won from the injured party at the time.

There is no fact that the victim has stolen the passbook, such as the facts charged, and then arbitrarily released KRW 6 million from the automatic payment machine.

Therefore, even if the rate of fraud is different from that of fraud, larceny is not established.

Nevertheless, the court below erred by misapprehending the legal principles as to whether the facts charged of the larceny constitute the elements of crime or by misapprehending the legal principles, which affected the conclusion of the judgment.

The punishment sentenced by the court below (two years of imprisonment) is too unreasonable.

The victim's fraud on April 18, 201 against the victim B on April 18, 201 of the 2017 High 59, which was found not guilty by the prosecutor, was unable to appear and testify at the court of the original instance on the grounds that his whereabouts are unknown. As such, the victim's statement prepared by the police on the part of the facts charged is admissible in accordance with Article 314 of the Criminal Procedure Act, and the victim's statement recorded in the record is credibility.

Of 2017, the strength of victim BX shall be inspected.

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