(영문) 서울고등법원 2010. 5. 28. 선고 2009노3306 판결

One cell phone (LG SB310, (portable phone No. 1 omitted) seized from Defendant 1 and one cell phone (portable phone No. 2 omitted), from Defendant 2, shall be forfeited from Defendant 1, respectively.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts and misapprehension of legal principles

(A) As to the homicide of the victim Nonindicted 17

(i) the absence of direct evidence;

Defendant 1 or the victim’s bloodstain was not found in the warehouse of this case, which was recognized as the place of crime, of which the lower court did not have been found. Even based on Defendant 2’s partial police statement mentioning Defendant 1’s relation to the crime, Defendant 1 took part in the abandonment of the body. Accordingly, there is no direct evidence as to Defendant 1’s murder.

2) Illegal in the process of finding facts based on indirect evidence

A) Nonindicted 1, 2, 3, and 4, and the victim’s family members’ statements are merely a inferred statement that was made at the latest after the fact of monetary transactions between Defendant 1 and the victim, and it is difficult to believe. Nonindicted 5’s statements are also the said persons, or there is no credibility in light of the deliberation and evaluation of Defendant 1.

B) Among the statements made by Nonindicted 6, the part that the victim did not receive the purchase price from Defendant 1 or that the face of the victim was revealed when he met on May 21, 2009 is merely a subjective evaluation, and it is insufficient to consider the part as the basis for the recognition of facts. The statements made by Nonindicted 7 and 8 are very insufficient to recognize the fact that Defendant 1 committed the crime.

C) According to the mobile phone call data, Defendant 2 and the victim revealed the fact that they were sent three times on May 22, 2009. This may rather be the circumstance that Defendant 2 and the victim promised to do so regardless of Defendant 1. Moreover, Defendant 1’s attachment on the closed-circuit screen on the national highway where Defendant 1 was well aware may constitute a counter-proof that Defendant 1 led Defendant 1. Meanwhile, even if it is recognized that Defendant 1 was sent on the closed-circuit screen of the national highway where he was well aware, this may arise from a situation where the victim was under the direct price, and it may not be recognized that the victim was killed without the resistance. Moreover, the fact that Defendant 1 was exposed to the fact that the victim was killed even the remaining indirect or circumstantial circumstances at the time of the lower court do not have any relation with the fact that Defendant 1 died.

D) Although it is insufficient to conclude that Defendant 1 murdered the victim by indirect or circumstantial evidence alone, the lower court determined that Defendant 1 conspiredd with Defendant 2 by misunderstanding facts contrary to the rules of evidence or by misapprehending the legal doctrine on the burden of proof.

(B) As to the conspiracy of robbery to evade debts

1) The non-existence of a debt against Defendant 1’s victim

Defendant 1 received approximately KRW 1,078,00,00 from the victim, but considerable of the funds were not borrowed but repaid in full. Accordingly, Defendant 1 at the time of the instant case did not bear any obligation against the victim. As such, there is no room to acknowledge that Defendant 1 conspired to commit robbery for the purpose of evading obligations. Nevertheless, the lower court erred by misapprehending the facts, thereby finding that Defendant 1 was liable to the victim for the liability equivalent to approximately KRW 1,64,502,120 at the time of the instant case.

2) The misapprehension of the legal principle as to robbery

As acknowledged by the court below, even though the victim delivered documents for the transfer of ownership on the existing real estate and the termination of the right to collateral security to Defendant 1, this is only based on the victim’s intent, but it cannot be deemed that there was any defect in the victim’s intent, and the property has been taken by force. In addition, even if Defendant 1 murdered by the victim, Defendant 1 has the right to confirm the existence of the claim by his heir and his heir. As such, Defendant 1 is temporarily exempted from the creditor’s position and is not liable for robbery. Nevertheless, the court below erred by misapprehending the relevant legal principles, thereby recognizing Defendant 1 as the crime of robbery.

In this regard, there is no evidence other than Defendant 1’s closed-circuit screen on the 19th national highway and the circumstances in which Defendant 1’s vehicle and Defendant 2’s vehicle are recorded on the front side of the closed-circuit screen, and thereafter, there is no evidence other than Defendant 1’s statement on the background that Defendant 2 was recorded on the front side of Defendant 2’s vehicle, and Nonindicted 8’s article on the scrails, “I know that Defendant 1 will know, but Defendant 2 will be the mother.” This is too insufficient to recognize Defendant 1’s crime of abandonment of the body. Nevertheless, based on this, the lower court erred by misapprehending the facts contrary to the rules of evidence by recognizing Defendant 1’s act of abandonment of the body.

(2) Unreasonable sentencing

Imprisonment with prison labor imposed on Defendant 1 by the court below is an excessive penalty.

B. Defendant 2

(1) Summary of grounds for appeal stated in the statement of grounds for appeal submitted within a legitimate period

(A) misunderstanding of facts and misapprehension of legal principles

1) Defendant 2: (a) murdered the victim solely at the end of contingent vision and abandoned the victim’s body; (b) there is no conspiracy with Defendant 1 to commit a crime.

2) Since Defendant 1 performed all the obligations owed to the victim at the time of the instant case, there is no room to recognize that Defendant 2’s act of killing the victim was for Defendant 1’s evasion of obligations.

3) Even if it is recognized that Defendant 2 conspired with Defendant 1 to murdered the victim for the purpose of evading Defendant 1’s obligation, since there is a heir and his heir have the method of confirming the existence of the claim, the Defendants cannot be held liable for robbery. The lower court erred by misapprehending the relevant legal doctrine, thereby recognizing Defendant 2 to constitute the crime of robbery.

(B) Unreasonable sentencing

In light of all kinds of sentencing conditions, the sentence imposed by the court below to Defendant 2 is too unreasonable.

(2) The gist of the previous suit after the second trial date

Defendant 2 has reconvened the previous grounds of appeal from the date of the second trial of the trial of the court of appeal, and there is a change to the purport that Defendant 2 was not involved in the crime of murdering or abandoning the body of a victim as follows. This is beyond the scope of supplement in case of previous grounds of appeal, but practical examination was conducted in the trial, so the above grounds of appeal as well as the above grounds of appeal are also determined.

(A) The reasons and circumstances leading up to May 22, 2009, which was the day of the instant case, to the Friju day.

1) On May 2, 2009, Defendant 2 sought to ○○○○○○○○○○ located in Songpa-gu Seoul, Defendant 1’s accommodation at the request of Defendant 1 on May 22, 2009. In this case, Defendant 1 received approximately KRW 1,500,000 as the amount of money upon Defendant 1’s request that Defendant 1 be able to work in a week.

2) In order to get off and get off to and off from the workplace where money has occurred and to use it for family travel, etc., Defendant 1 was asked to get off the siren vehicle at the time of taking over the marina vehicle at the time of Defendant 1’s request to get off the siren vehicle at the same time and immediately get off the siren vehicle.

(B) Connection with the victim on the day of the instant case

1) Although there was a fact that the victim was divided into the victim and the victim twice at the lower date of the instant case, the victim was merely an internal telephone, not an agreement with the victim on a day-to-day basis.

2) Therefore, Defendant 2 did not know at all the fact that the victim was in the presence of Defendant 1 with Defendant 1.

1) On May 22, 2009, when arriving in a non-owned house and coming to be an abandoned house owned by Defendant 1 located in iron dye at around 20:00, the fye and fye dyed immediately following the eating of tea and coffee.

2) However, around 02:00 on the 23th of the same month following the following day, Defendant 1 told Defendant 1 to shoulder the sleep by congested with Defendant 1. In addition, Defendant 1’s vehicle was installed at the vicinity of the pressure hall in the school of Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do, by driving each of his own vehicles, and talked with Defendant 1 by hanging the way on which Defendant 1 was carrying his siren on his siren, and Defendant 1 asked Defendant 2 to ask for a more depth by requesting Defendant 9 or Nonindicted 8, who is an article 9 or Nonindicted 8, which is the official of Chungcheongnam-do, and Defendant 1 asked for a more depth by asking Defendant 1 to leave the Busan.

3) Defendant 2: (a) sought Nonindicted 9, first of all, requested work; (b) was rejected; and (c) requested by Nonindicted 8 to find and store the packages in depth with the knowledge of the cryp of the fireworks and chests; and (d) completed work, he was immediately going to Seoul.

(D) Circumstances of false confessions

1) On May 24, 2009, at Defendant 1’s request on May 25, 2009, Defendant 1 was met at the Daegu △△ hotel on the 25th day following the following day. At that time, Defendant 1 asked Defendant 2 to “The date when the goods sold on the day were known to be the victim’s body, not the fireworks but the victim’s body.” Defendant 1 asked Defendant 2 to “The date when the goods sold on the day were landed to the said abandoned house, Defendant 1 was moving the victim to the said abandoned house, and he left the said house, and Defendant 2 later asked Defendant 2 to “the date when he was landed to the said house.”

2) Although Defendant 2 had different playing, Defendant 2 consented to Defendant 1, rather than Defendant 1, who is the next birth of the same, on the ground that he would be able to obtain imprisonment for more than three years if he would be able to obtain contingent murder. However, the time was insufficient and the specific method of crime was not continued due to lack of time.

3) Therefore, Defendant 2 made a false confession that he had killed the victim and abandoned the body of the victim by the date of the first trial of the court below through the police, the prosecutor's office, and the court below without knowing that there was no participation in the crime and no knowledge of it.

C. Prosecutor (Defendant 1)

In light of the circumstances where Defendant 1 plans to commit the instant crime at the leading location, and the method of committing the instant crime is extremely cruel, the above punishment imposed by the lower court against Defendant 1 is too unrest and unreasonable, taking into account the following: (a) the victim’s bereaved family members suffered a large pain and pain; and (b) the victim’s bereaved family members suffered a large amount of pain.

2. Determination:

(a) Order of review and judgment on changes in indictment;

(1) Prior to the judgment on the grounds of appeal, the prosecutor examined ex officio prior to the date of the 8th trial of the trial, and the prosecutor applied for changes in indictment with the contents of the robbery in exchange as shown in the attached Form, and the court granted permission. This part of the judgment of the court below cannot be maintained as it is due to the changes in the subject of the judgment.

However, the amendment of the above indictment clearly states the content of the defendant 1's obligation to the victim, and supplement the circumstance that it is practically impossible or considerably difficult for the victim to pay debts due to the victim's murder. As such, it does not result in a substantial change in the part directly related to the allegations of the above defendants. Thus, the grounds for appeal on mistake of facts and misapprehension of legal principles as to the above facts charged are subject to the judgment of this court. Thus, we examine this.

(2) On the other hand, the existence and content of Defendant 1’s obligation to the victim is the premise of the establishment of the commission of robbery of this case, and it has important meaning as the motive of the whole crime. Thus, first of all, it is examined as to this issue. Then, the grounds for appeal as to whether the Defendants committed the commission of murder and the commission of abandonment of the body are examined, and then the judgment is made as to the assertion of legal principles as to robbery.

B. Determination as to the existence and content of Defendant 1’s obligation to the victim

(1) The relationship between the Defendants and the victim

According to the evidence duly adopted and examined by the court below and the testimony of Nonindicted Party 10 by Nonindicted Party 10, the following facts may be recognized.

(A) Defendant 1 introduced that he was residing in the Masan-Eup, U.S., U.S., U.S., and that he was engaged in multi-faceted projects, such as real estate auction investment, specialized agricultural management, etc. around, and that he was possessing a lot of land in the fluence. The above Defendant had approximately 176cm in height, approximately 78km in weight, 78km in size, and took over and manages physical strength (the fifth trial date) by taking advantage of the peace movement and managing physical strength (the fifth trial date).

(B) Defendant 2 was the punishment of Defendant 1, who was residing in the Dolsan-ri, Seocheon-gun, Chungcheongnam-gun, North Korea, from around April 2008, resided in the Dolsan-ri, and was on around April 2009, and was employed as an agent for the dedicated hotel located in the same Gu, Yangcheon-gu, Seoul, Yangcheon-gu, Seoul, as the representative for the dedicated hotel located in the same Gu. The above Defendant had approximately 170.8cm in height and approximately 57 kilograms in body (Evidence No. 694 of the evidence record), and was economically difficult (Evidence No. 694).

(C) The victim, as a male of 1960s, resided in Songpa-gu Seoul Metropolitan City, approximately 180§¯, and approximately 69 kilograms in body (Evidence No. 754 of the record of evidence), did not engage in flat alcohol and tobacco (No. 311 of the record of public trial, No. 8, No. 532 of the record of evidence, No. 690 of the record of public trial), and did not engage in health management, such as conducting a part-time exercise using a sports organization (Evidence No. 6 of the record of evidence).

(D) Around spring of 208, the victim introduced Defendant 2 through Nonindicted 5 and Nonindicted 11, etc., a middle school dong-gu, Nonindicted 5, and Godong-dong-gu, Nonindicted 5. At the time, Defendant 2 had a lot of land in the Non-Indicted 5, etc., and revealed that he was found to have a person to lend funds by taking it as security. The victim showed interest, and the victim went to a non-resident with Nonindicted 5, 11, and 2. At this time, Defendant 2 introduced Defendant 1, who was the birth from Defendant 2, provided an explanation on the current status of land and development outlook, and thereafter loaned funds to Defendant 1 and started financial transactions. In addition, the victim visited Defendant 2 with Nonindicted 5 and 11 around February 208, 2008, and the victim visited Defendant 1’s Non-Indicted 2 and the victim visited Defendant 2 and the victim called Defendant 2 and the victim called Defendant 2 as evidence of his age No. 2 and the victim’s age 2.

(2) Evidential documents on monetary transactions between Defendant 1 and the victim

(A) The following facts are acknowledged according to the evidence duly adopted and examined by the court below, in particular, the statement of the prosecutor's statement on Nonindicted 1 and 2 by the prosecutor's office, the statement of the victim's statement attached to the above protocol (Evidence No. 536-540 of the evidence record) and the statement of the victim's log (Evidence No. 34-40 of the evidence record) attached to the police investigation report.

1) The victim had a very lush character through almost all transactions through a financial account, and recorded the details accurately and specifically.

2) As to the details of transactions with Defendant 1, the victim entered them directly in the form of a camera, set, etc., even before the death of the victim. The date and time of each loan, principal, interest, lending conditions, the actual amount of payment deducting interest, the details of provision of collateral, the indication of secured real estate, the expected execution method, and the current status of repayment of principal and interest, etc. In addition, the statement is almost identical to the objective materials such as financial data or real estate register.

3) Furthermore, the joint appearance or set of the above victim states the exact name of Defendant 1, the debtor, at the location where the exact name is located, and the exclusive content of the transaction with Defendant 1, without mixing with the other party’s details, can sufficiently understand the existence and content of the victim’s claim against Defendant 1 even if there was no supplementary explanation from the author.

(B) According to the above, since the statement on the part of the defendant 1 and the defendant 1 on the part of the defendant 1 and the victim's name on the part of the defendant 1 and the victim's name on the part of the defendant 1 and the victim's name on the part of the defendant 1 and the defendant's name on the part

(3) Details of the victim’s monetary loan to Defendant 1

From this point of view, the evidence duly adopted and examined by the court below, in particular, the contents of the monetary lending to Defendant 1 of the victim, recognized by each description, such as the above metae and set and related financial data (Evidence No. 377-412, 719-721 of the evidence record), and real estate related data (Evidence No. 162-197, 648-662, 1020-104 of the evidence record), such as a copy of the real estate register, are as follows.

(A) Details of loans in 2008

1) Loans made on May 20, 2008 (Evidence Nos. 34, 37, 393, 536, 720 of the Evidence Records)

○ Principal: 100,000,000

○ Actual Subsidies: 82,50,000 won (the account transfer of KRW 30,000,000 on May 19, 2008, and the payment of KRW 500,000,000, and the account transfer of KRW 52,00,000 on the 20th of the same month, provided that the prosecutor omitted the portion of KRW 50,000 paid as the check from the borrowed amount on the facts charged).

○ The amount of KRW 17,500,000,000,000,000 for the 3-month interest (from May 20, 2008 to August 19, 2008) shall be deducted.

○ Interest: 2.5% per month (2,500,000)

Due date: November 20, 2008

Security: for the establishment of a mortgage on May 19, 2008 with respect to the 1654 square meters wide from the Seocheon-do, Seocheon-do, Jeoncheon-gun, Jeonbuk-do (hereinafter referred to as “2 omitted), Defendant 1 on May 19, 2008, the second-order establishment of a mortgage shall be registered with respect to the mortgagee of a mortgage, the maximum debt amount of which shall

2) Loans made on July 17, 2008 (Evidence Nos. 34, 37, 174, 384, 393, 536)

○ Principal: 100,000,000

○ Actual Subsidies: 96,00,000 won (each account transfer of KRW 60,000,000 on July 16, 2008 and KRW 36,000,000 on July 16, 208)

○ Deduction of the amount of KRW 4,000,000 on a monthly basis

○ Interest: 4% per month (4,000,000)

Security: A registration of ownership transfer has been made in the name of a victim with respect to the area of 320 square meters in the name of the victim with respect to the area of Mapo-ri (hereinafter referred to as "three omitted) in the Mapo-do in Jeonbuk-gun, Jeonbuk-gun, Seoul,

3) Lending on August 7, 2008 (Evidence No. 35, 37, 162, 166, 384, 536 of the Evidence Record)

Principal of ○: 95,000,000 won ( Account Transfer on August 7, 2008)

○ Interest: 5% per month (4,750,000 won per month), but for the first month, 10,000,000 won per month;

Security: Registration to establish a mortgage on August 6, 2008, with respect to the establishment of a forest of 331 square meters in Maul-ri (hereinafter omitted), the forest of 1035 square meters prior to the same Ri (hereinafter omitted), and the 240 square meters prior to the same Ri (hereinafter referred to as “6 omitted), etc. owned by Defendant 1 on August 6, 2008, with respect to the right to collateral security, the mortgagee, the maximum debt amount of 95,000,000 won.

4) Loans made on August 26, 2008 (Evidence No. 35-37, 170, 536, 655 of the Evidence Records)

○ A loan of approximately KRW 300,000,000 from the Songpa-gu Seoul Metropolitan Government Agricultural Cooperative as security with a field of 1508 square meters located in Songpa-gu (hereinafter referred to as "7 omitted) and owned by the victim for a loan of KRW 300

○ Principal: 300,000,000

○ Actual Subsidies: 277,500,000 won ( Account Transfer on August 26, 2008)

○ Deduction total of KRW 22,500,000,000, total of KRW 16,500,000,000,000,000,000 for loans extended on May 20, 2008, and KRW 22,50,00,000,00 for the first month interest on loans extended on July 17, 2008, as of August 7, 2008, including interest of KRW 10,00,00 for the first month, and various fees, etc.

○ Interest: Defendant 1 bears the amount of KRW 2,00,000 per month, which is equivalent to the interest on loans to the above-mentioned Song Agricultural Cooperative;

Security: A registration for transfer of ownership is made in the name of a victim on August 25, 2008 with respect to 1/2 shares out of 51965 square meters of forests and fields owned by Defendant 1 in the name of the father-gun, Chungcheongnam-do, Chungcheongnam-do (hereinafter referred to as “8 omitted”).

5) Loans made on September 4, 2008 (Evidence Nos. 37, 183, 188, 193, 394, 536)

Principal of ○: 120,000,000 won ( Account Transfer on September 4, 2008)

○ Interest: 4% per month (4,800,000)

Security: on September 2, 2008, with respect to the share of 4/5 square meters in the name of the victim with respect to the share of 307 square meters in the name of the mortgagee, the maximum debt amount of 19,000,000 square meters in the name of the victim with respect to the share of 4/5 square meters in the name of the victim with respect to the share of 307 square meters in the name of the Jeon-gun-gun-gun-gun-gun, the Jeon-gun, the Jeon-gun, the Dong-gun (hereinafter omitted) prior to the same Ri (hereinafter omitted), 56 square meters prior to the same Ri (hereinafter referred to as 11 omitted), and 757 square meters in the name of the victim with respect to the share of 105 square meters in the name of the victim with respect to the share of 105 square meters in the name of the non-indicted 12 in

6) Loans of KRW 1,000,000 as principal on September 29, 2008 (Evidence Records No. 395 pages)

7) Loans made on October 4, 2008 (Evidence No. 37-38, 177, 379, 536, 655 of the Evidence Records)

○ A loan with a loan of approximately KRW 200,000,000,000 for a loan additionally granted from the Song-gu Agricultural Cooperative as security for a 1508 square meters of the above movement owned by the victim (hereinafter referred to as “7 omitted”).

Principal: 200,000,000 won

○ Actual Subsidies: 193,482,120 won (each account transfer of KRW 80,00,000 on October 2, 2008, KRW 80,000 on October 2, 2008, KRW 80,000 on March of the same month, and KRW 33,482,120 on April of the same month).

○ Deduction of 6,517,880 won in total, including interest 5,00,000 won and creation expenses 1,517,880 won

○ Interest: 5,000,000 won per month

○ Time Limit: six months after

Security: A registration of ownership transfer shall be made in the name of the victim with respect to each share of 4/5 square meters among the 1137 square meters in Masan-ri, Masan-do (hereinafter referred to as 14 omitted) in Jeon-gun-gun, Jeonbuk-do on October 2, 2008 and 2658 square meters in the same Ri (hereinafter referred to as 15 omitted).

8) Loans made on October 19, 2008 (Evidence Records No. 39, 181, 536 pages)

Principal of ○: 8,000,000 won ( Account Transfer on October 19, 2008)

Security: A registration for transfer of ownership is made in the name of a victim with respect to the area of forest land of 473 square meters in the name of the victim, on October 10, 2008, in the name of the Republic of Korea, Chungcheongnam-do (hereinafter referred to as “16 omitted”) in the area of Ya

9) Lending on November 2008 (Evidence Nos. 39, 387, 396, 536)

The principal of ○: 98,500,000 won (each account transfer of KRW 80,000,000 on November 4, 2008, KRW 16,500,000 on July 16, 200 on the same month, KRW 1,00,000 on the 27th day of the same month, and KRW 1,00,000 on the 1,00,000 on the 11,00,000 on the 11

(B) a summary of the transaction as of the end of 2008;

(a) Principal: approximately KRW 1,022,500,000 in total;

(b) Actual subsidies: approximately KRW 971,982,120 in total;

3) Contract interest: approximately 22,50,000 won per month [a monthly interest rate of KRW 2,50,000 per month (i.e., interest rate of KRW 2,50,000 per month on May 20, 2008 + monthly interest rate of KRW 4,000,000 per month on July 17, 2008 + interest rate of KRW 4,750,000 per month on loans as of August 7, 2008 + interest rate of KRW 2,00,000 per month on loans as of August 26, 2008 + KRW 4,80,000 per month on loans as of September 4, 200 + evidence reduction of KRW 30,000 from May 30, 208) minus the remaining amount of loans from May 30, 2008 (Evidence evidence).

○ A loan of approximately KRW 165,00,000 from the National Agricultural Cooperative Federation as security for a 397m2 in Songpa-gu Seoul Metropolitan Government (hereinafter referred to as "17m2") owned by the victim and a loan of the principal below among them.

Principal of ○: 100,000,000 won ( Account Transfer on January 15, 2009)

○ Repayment Period: January 20, 2009

○ Security Agreement: 120,00,000 won, including interest on unpaid loans 20,000,000 won, is not repaid until January 20, 2009, which is the due date for payment, the above non-indicted 12 shall be given a period for completing the registration of ownership transfer in the name of the victim with respect to 1/2 shares out of 36893 square meters of forest land owned by the above non-indicted 12 (hereinafter omitted) and 36893 square meters in the name of the victim. Defendant 1 shall deliver documents necessary for the registration procedure to the employees of the certified judicial scrivener office

The execution of ○ Security: The registration of ownership transfer has been made on January 19, 2009 in the name of the victim with respect to one-half portion of the real estate held on February 6, 2009 on the ground that Defendant 1 was unable to repay the said amount at the maturity of payment.

(D) Lending on February 19, 2009 (Evidence No. 539, 648, 652 of the Evidence Records)

○ Principal: 150,000,000

○ Actual Subsidies: 125,000,000 won

○ Deduction of 25,00,000 won in total as well as 5,000,000 won in respect of unpaid interest on existing loans

○ Defendant 1 loaned approximately KRW 150,00,000 from the Songpa Agricultural Cooperative. The method is to complete the registration of creation of a mortgage over each of the above real estates by providing the victim with a real security of KRW 139 square meters and a 162 square meters in the same Gu, Songpa-gu, Seoul Metropolitan Government (hereinafter 19 omitted) prior to the movement in Songpa-gu (hereinafter 19 omitted) and the same Gu, Geum-dong (hereinafter 20 omitted) with a real security of KRW 195,00,000.

○ New agreement on the aggregate of loans in 2008 and loans in January 15, 2009, and loans in February 19, 2009 is 25,000,000 won per month.

(E) Terms and conditions of the loan on May 2009

1) On May 2, 2009, the victim lent KRW 40,000,00 to Defendant 1 on the 6th of the same month, subject to the collection of all the leased principal until May 2, 2009 (Evidence Nos. 391, 539, and on the other hand, according to the victim’s statement, the leased principal up to May 6, 2009 is KRW 1,328,00,000 in total, and there is a difference between the actual grant due to the above recognition and the total amount of KRW 1,236,982,120 in total. In most cases, this difference appears to have arisen from the calculation based on the principal before the victim deducts the prior interest, etc.).

2) Then, around the 15th day of the same month, the victim offered 1508 square meters of the above movement on his own (hereinafter 7 omitted) and borrowed approximately KRW 300,000,000 from the bond company and lent it to Defendant 1 as it is (Evidence No. 539, 655 of the evidence record).

3) In addition, on around the 18th day of the same month, Defendant 1 extended approximately KRW 63,00,000 to Defendant 1 for additional loans from the Song Agricultural Cooperative, the victim provided a re-registration of creation of a neighboring mortgage of KRW 81,90,000 for each of the above real estate by providing a 139 square meters of the above movement on his own (hereinafter 19 omitted) and 162 square meters of the gold-dong (hereinafter 20 omitted) as a water collateral, and completed the registration of creation of a neighboring mortgage of KRW 81,90,00 of the maximum debt amount (Evidence No. 539, 648, and 652

4) In addition, on the 21st day of the same month, the victim took out a loan of approximately KRW 200,000,000 from the Songpa Agricultural Cooperative as security for the said movement owned by the victim (hereinafter 17 omitted) and repaid the principal and interest of the loan to the National Agricultural Cooperative Federation on February 15, 2009, and lent KRW 40,000 to Defendant 1 by means of the remainder of the loan, etc. (Evidence No. 391, 539, 659).

(f) Settlement of the details of the victim’s loans to Defendant 1

As above, the victim delivered approximately KRW 971,982,120 to Defendant 1 in 200 and lent KRW 1,022,50,000 to Defendant 1. The victim provided approximately KRW 668,00,000 in actual amount in 209 and lent KRW 693,00,000 in actual amount. From May 2008 to May 21, 2009, the victim actually provided approximately KRW 1,639,982,120 in total and lent KRW 1,715,50,000 in total, and the agreement thereon reached KRW 25,00,00 in each month. In particular, on May 2009, the victim provided approximately KRW 43,000 in total to Defendant 1.

(4) As to the Defendants’ assertion that full repayment of debt to the victim was made

(A) Whether the loan was repaid on May 20, 208

Defendant 1 asserts that the above loan was repaid in light of the fact that the right to collateral security established in the victim's future was terminated on November 26, 2008 (Evidence No. 1-1).

However, according to the records of the above victim's domains (Evidence No. 537) and No. 38 (Evidence No. 38) ("No. 100 million won, which was decided to recover No. 2008) of the above victim's domains (Evidence No. 537) and No. 38) ("No. 100 million won, etc.) it is recognized that the above loan was not repaid even until the time when the loan was due and the following case occurred. In addition, in the case of the above 10 real estate of which the registration of ownership transfer was completed in order to secure the defendant 1's loan's debt, the total standard market price at the time when each registration of ownership transfer was completed in the victim's future is about 45,836,153 won (Evidence No. 1020 of the Evidence No. 1020 of the Record), and the first priority of the above loan No. 1690,000 won was not yet cancelled by the registration of mortgage No. 200.

(B) Whether the loan was repaid on July 17, 2008

Although Defendant 1 asserts that all of the above loans have been repaid and received a refund from the victim, Defendant 1 did not have any evidentiary materials on this issue, according to each description of the note and set, it is sufficiently recognized that Defendant 1 was not able to repay the above loans so that Defendant 1 can benefit from this case, and thus, the above argument cannot be accepted.

Defendant 1 asserts that the above loan was repaid in light of the fact that the right to collateral security established in the victim's future has already been terminated on April 28, 2009 for the security of the above loan claim, but the above argument is without merit for the reasons described in the above (a) and (g).

(D) Whether loans have been repaid on August 26, 2008

Defendant 1 asserts that the above loans amounting to KRW 25,00,000 among the above loans amounting to KRW 275,000,000,000 was paid as real estate purchase price, and that the remainder of KRW 250,000,000 was paid as of July 17, 2008 and paid as of August 7, 2008, and then remitted the amount and invested again. However, as recognized above, the victim did not invest in Defendant 1, but loaned money. Furthermore, the above loans amounting to KRW 300,00,000,000, not from Defendant 1’s previous loans amounting to KRW 275,00,00 as security, even if the above assertion is without merit.

(E) Whether the loan was repaid on September 4, 2008

In light of the fact that the right to collateral security established in the victim's future was already terminated on November 26, 2008 (Evidence No. 1-2), Defendant 1 asserted that the above loan was repaid, but it is difficult to accept it for reasons such as the foregoing Paragraph (a).

(F) Whether loans made on October 4, 2008 and loans made on October 19, 2008

Although Defendant 1 asserts that each of the above funds is not a loan, it is not a loan, it is difficult to accept the above argument since the above funds are deemed as a loan.

(G) Whether Defendant 1 fully repaid the remaining debts to the victim and received documents for the cancellation of the registration of creation and the registration of ownership transfer on May 21, 2009

1) On May 14, 2009, Defendant 1 paid approximately KRW 267,00,000 to the victim's repayment of remaining debts and real estate sale proceeds; around 16:00 on May 21, 2009, Defendant 1 took part in the company with Nonindicted 6’s staff members of the certified judicial scrivener office at the accommodation of the above Defendant at ○○○○○○○○○○○○○○○○○ located in Songpa-gu, Songpa-gu, Seoul; hereinafter referred to as "4 omitted); Dai-ri (hereinafter referred to as "5 omitted); Dai-ri (hereinafter referred to as "6 omitted); and Mai-ri (hereinafter referred to as "6 omitted); 1/2 of shares in the above land at the same Gun; 1/4 of shares in each of the above Gun; 1/5 of shares in each of the above Gun; 2 of the above 4 shares in each of the above Myeoni-ri-ri (hereinafter referred to as "14 omitted); 15 of shares in each Myeoni-ri-ri (hereinafter referred to as "14);

2) First of all, according to the evidence duly adopted and examined by the court below, in particular the police officers and the prosecutor's statement, and the statement of the non-indicted 6's written statement, the victim at the time when he thought that all monetary issues were resolved between the defendant 1 and the victim at the time of the examination of witness in the court below as to the non-indicted 6's office of a certified judicial scrivener who will act as an agent for the application for registration as follows: (a) he believed all the documents to the effect that he believed the statement of the defendant 1 while he did not receive any money in return for settling his obligation; (b) in fact, he did not have any error in cash between the defendant 1 and the victim; and (c) at the time, the fact that he received documents for registration from the defendant 1 without stating the purchase price in the sales contract (the part that the defendant 1 and the victim thought that all monetary issues were resolved at the time of the examination of witness in the court of the court below as to the non-indicted 6 is about the subjective judgment itself, and it does not interfere with

As seen earlier, Defendant 1 at the time of the instant case was liable to the victim for the principal amounting to KRW 1,700,000,000 or more; Defendant 1’s value of real estate returned to Defendant 1’s ownership without any limit to the number of Defendant 1’s debt amount; Defendant 1 anticipated to be repaid the full amount of the above obligation from Defendant 1 until May 22, 2009; and the victim obtained bonds and lent approximately KRW 443,00,000 on an intensive loan only for the same month (Therefore, there is sufficient possibility that the considerable amount of the money Defendant 1 owned by Defendant 1 is the funds borrowed from the victim); Defendant 1 did not submit financial data on the source of the fund claimed by Defendant 1. In full view of the above circumstances, it is reasonable to deem that the victim had cancelled the registration of creation of a mortgage or restored the ownership of the real estate in the name of Defendant 1 without having been repaid.

(5) Sub-committee

As above, Defendant 1 was found to have borne a total of approximately KRW 1,639,982,120 with only the amount actually delivered to the victim at the time of the instant case (the actual obligation is based only on the amount actually delivered by the prosecutor, which does not exceed the amount indicated in the facts charged, and the amount actually delivered by the prosecutor once). The Defendants’ assertion disputing this issue is without merit. Furthermore, as determined later, Defendant 1’s existence and the amount of Defendant 1’s obligation to the victim as an element of the motive for the crime without accepting the facts charged by robbery against the Defendants and recognizing only the establishment of murder. As such, Defendant 1’s claim against the victim was assessed as to the existence of and the amount of the Defendant’s obligation to the victim. In light of the fact that the collateral security right for securing the victim’s obligation was partially repaid on May 20 of the same year and on September 4 of the same year prior to the occurrence of the instant case, Defendant 1 was merely a part of Defendant 1’s entire obligation, and thus, Defendant 1 had no influence at the time of this case.

C. Determination on the Defendants’ participation in the instant crime

(1) Method of judgment

The conviction in a criminal trial is not necessarily required to be formed by direct evidence, but it is formed by indirect evidence unless it violates the empirical and logical rules. Even if indirect evidence has no full probative value on an individual criminal facts, if it is judged that there is a comprehensive probative value that does not have its own own in case of considering the whole evidence under mutual relation with each other, then it can be recognized as criminal facts even if it is judged that there is a comprehensive probative value that does not exist its own in case where the conviction in a criminal trial does not necessarily have to be formed by direct evidence. However, in the case of proving criminal facts by the method of proving indirect facts or circumstantial facts, what constitutes an indirect fact that has considerable relevance should be reasonably determined by close observation or analysis based on normal empirical rule.

In relation to the facts charged in the instant case, the Defendants denied the participation of the Defendants in the crime itself, and there is no direct evidence such as witness’s statement. Thus, this part of the judgment should be based on the method of examining the comprehensive probative value of indirect or circumstantial facts recognized by indirect evidence, such as the aforementioned legal principles.

(2) Facts and circumstances of recognition

According to the evidence duly adopted and examined by the court below and each legal statement of Nonindicted 7, 12, 13, 10, 8, 14, and 15 of the witnesses of the party trial, the following facts and circumstances can be recognized:

(A) Before May 22, 2009, Defendant 1’s criminal records

1) On May 12, 2009, Defendant 1, up to May 12, 2009 and the date of the occurrence of the instant case, set a lodging place at ○○○○○○○○○○○○○○○○○○○ located in Songpa-gu, Seoul, and most hours were sent out during the use of force (Evidence Nos. 44, 228, 612). The said ○○○○○○○○○○○ was in the same Dong as the Olympic Park’s bicycleline, and is not far away from the residence of the victim in Ydong-dong.

2) As seen earlier, around 16:00 on May 21, 2009, the day before the occurrence of the instant case, Defendant 1 was issued from the victim the documents necessary for the registration procedure for cancellation of the registration of the establishment of each neighboring mortgage and the registration procedure for ownership transfer in the future of Nonindicted 12 of Defendant 1’s wife.

(B) Defendant 2’s movement prior to May 22, 2009

1) At around 02:10 on May 2, 2009, Defendant 2: (a) worked together at the dedicated hotel in Seoul, and (b) worked as a taxi engineer, and (c) sought Defendant 1 from Nonindicted 7 ( mobile phone number 3 omitted) via telephone at around 03:18 on the same day on which he was boarding his taxi in Gangseo-gu, Seoul, Gangseo-gu, and (d) at around 00:18. In this case, Defendant 2 paid 20,000 won the taxi fee of KRW 27,00,000, while Defendant 2 paid 20,000 won the taxi fee to Nonindicted 7.

2) After Defendant 2 met Defendant 1 at the above conference room, at around 09:00 on the same day, Defendant 2 asked Defendant 1 to go through the above conference and again Nonindicted 7 to get on the taxi that he drives, and to find out a car siren at the same time. However, Defendant 2 had to sell approximately approximately 20,00 square meters on a non-owned land to Nonindicted 7 et al. from her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her

3) Defendant 2 visited Non-Indicted 7 with a siren company located in the Cheongyang and Seodong, etc., but failed to conclude a contract on the grounds that there is no vehicle for mind or that there is a procedural spreading, etc., and Defendant 2 suggested that Non-Indicted 7 move to the following siren. However, Defendant 2 came to work at the same time, and Defendant 2 came to contact with △△△△ Group in the Bupyeongcheon-gu, and eventually, decided to set a car (vehicle No. 1 omitted) car for one month, and took over the said siren vehicle in front of the dedicated hotel.

4) Defendant 2 received approximately KRW 1,380,00 from Defendant 1, who was the birthee Nonindicted 7, and paid KRW 700,000 among them, and Nonindicted 7 paid KRW 100,000 to the amount of money. In fact, the cashier’s checks of KRW 500,000 at the face value paid for sirens was withdrawn by Defendant 1 on May 21, 2009, the preceding day. Meanwhile, Defendant 2 stated to the effect that there was a person who set the land to Nonindicted 7 on that day (the fourth trial date).

(C) The details of the currency between the Defendants and the victims before and after the start of Seoul on May 22, 2009 and the arrival of the State without any jurisdiction.

1) From May 22, 2009, Defendant 1 continued to move, and promoted the procedure for cancellation of registration of the establishment of a neighboring mortgage and the procedure for ownership transfer registration in the future of Nonindicted 12 in currency with Nonindicted 6 (Carryingphone No. 4 omitted) around 10:28, 2009, around 10:35 and around 12:55.

2) Meanwhile, the victim did not pay interest to the non-indicted 5 in the past while expressing the concern about the delay of interest (section 307 of the trial record). However, around 09:00 on the day of the instant case, the victim took a house to the non-indicted 16 (Carrying phone No. 5) who had been in the past transactional relationship in the past, and took a house to the non-indicted 16 (Carrying phone No. 5) in the vicinity of the Guri-si (Evidence No. 690 of the evidence record).

3) However, Defendant 1 called Defendant 2, around 12:58 on the day of the instant case, and around 13:02 on the day of the instant case, and Defendant 1 called Defendant 2 in Gangseo-gu Seoul, Gangseo-gu, Seoul, for the victim, and Defendant 2 and the victim of Guridong-si in Gangseo-gu, Gangseo-gu, Seoul. In addition, Defendant 1 called Defendant 2, at the same bomb, around 14:26 on the day of the instant case, Defendant 2 again called Defendant 2, around 14:27 on the day of the instant case, around 14:31 and around 14:33, and around 14:34, at around 14:34, Defendant 2, who is located in Gangseo-gu, Gangseo-gu, Seoul, Seoyang-gu, Seoul.

4) In relation to this, Nonindicted 16 stated to the victim’s wife Nonindicted 1 at the time of the instant case that, with the brightness voice, Nonindicted 16 stated to the other party to the telephone, that “the victim was able to carry out the business that had been defective prior to the occurrence of the amount of money to be received,” and that at the time, Nonindicted 16 stated to the effect that, with respect to the phone calls of an investigative agency, the victim was able to ask the other party to the telephone (Evidence No. 532 of the Evidence Record). At the time, Nonindicted 16 stated to the effect that “I would be able to carry out the business that had been defective prior to the occurrence of the amount of money to be received, such as the Ga and Ga, and the amount of money to be received would be able to carry

5) 이후 피고인 2는 위 렌트 차량을 타고 이동하면서, 사건 당일 15:00경 서울 강서구 화곡7동에서, 15:41경 서울 양천구 목4동에서, 16:39경 서울 용산구 동자동에서, 16:51경 서울 용산구 한남동에서, 17:03경 서울 서초구 양재7동에서 각 피고인 1에게 전화를 걸었고, 이어서 17:12경 서울요금소를 통해 경부고속국도 하행선에 진입하였다. 피고인 2는 사건 당일 17:26경 피고인 1로부터 전화를 받은 후, 17:28경 용인시, 18:59경 대전 동구 대청동을 거쳐 19:24경 대진고속국도 무주요금소를 통과해 무주에 도착하였다. 이어서 피고인 2는 무주요금소로부터 약 36㎞ 떨어진 전북 무주군 무풍면 철목리 (이하 21 생략) 소재 피고인 1 소유의 빈집(이하 ‘이 사건 공가’라고 한다)에 사건 당일 20:30경 이전에 도착하여 렌트 차량을 주차시켰다. 피고인 2는 이어서 사건 당일 20:48경 공소외 7에게 전화를 하였으나 통화가 연결되지 않았고, 21:00경에는 무주로 내려오는 피고인 1로부터 전화받은 것을 끝으로, 얼마 후 휴대전화의 전원을 껐다. 그리고 위 렌트 차량은 적어도 다음 날인 2009. 5. 23. 토요일 00:59경까지는 이 사건 공가에 그대로 주차되어 있었다.

6) Meanwhile, Defendant 1 called Defendant 2 at around 17:26 on the day of the instant case, and called Defendant 1 at around 17:49 at around 17:49, while moving to a gold-dong, in which the victim’s residence was located, Defendant 1 called the victim’s phone at around 17:53, the victim called the victim’s phone at around 17:53. Defendant 1: (a) moved the victim to the passenger’s (vehicle No. 2 omitted) at around 18:2 on the day of the instant case; (b) moved the victim to the passenger’s vehicle at around 18:2 on the same day, and entered the Hacheon-si, the Seoul Fri-do Office at around 19:35 at around 18:50, 21:17 on the day of the instant case.

7) The victim did not know in advance to his family members of this day, and the victim did not know to his family members of this day. At around 18:56 of the day of the instant case in the Do, the victim did not know to his family members of this day, and at around 21:05, the victim did not know to his family members of this day by making a telephone call with his mother Nonindicted 1 and Nonindicted 2, and even at around 21:05, his cellular phone became all of them.

(D) On May 23, 2009, the Defendants and the victims’ happiness until the non-state-free departure.

1) Since then, as seen in the following (e), the victim was killed on May 23, 2009 on or before 02:49, the following day and the body was packed. The victim’s telephone call details and the closed circuit screen are not revealed.

2) From the day following the arrival of each State in the case of the Defendants, there is no objective data from the date of arrival of each State until the surface of the Defendants, which, around 02:49 on May 23, 2009, driven the respective vehicles of their own, passed around the 19th national highways at the intervals of one second from the offline to the long-circuit screen, toward the long-circuit area near the 19th national highways.

3) After the lapse of the above Osan Tri-ri-ri-ri, the Defendants arrived in the vicinity of the Chho-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri).

4) Defendant 1 and Defendant 2, at around 04:00 on the same day, were found to be buried in the house of Non-Party 9, who resides in the Mari-ri (hereinafter referred to as “Non-Party 9”). Defendant 2 asked Defendant 1 to sell the land as a Mari-ri, but rejected the request.

5) After 04:59 on the same day, Defendant 2 moved to the said siren vehicle and passed through the Unfair Elementary School near the said Southern-do, and, from around 05:45, Defendant 2 attempted to make a telephone conversation to Defendant 1 on about eight occasions, but did not connect Defendant 1’s cell phone with all of Defendant 1’s cell phoness. On the same day, Defendant 2 sent to Defendant 1 a text message stating that “I will not deal with this within the limit of Nonindicted 9” on the same day, around 06:20.

(6) At around 06:40 on the same day, Defendant 2 found Nonindicted 8, an article 5-7, residing in Chungcheongnam-gun, Chungcheongnam-gun, Geumsan-gun (hereinafter 24 omitted) with approximately 0:0 on the same day. Defendant 2 introduced Nonindicted 8, who is not well aware of himself, as Defendant 1’s punishment, and requested Nonindicted 8, who was in the vicinity of the above part of the land (hereinafter 1 omitted) to stop the softening work and to stop the softening work, on the ground that there was another work scheduled to start from Nonindicted 8, 200, and then asked Nonindicted 8 to stop the sale of the goods at the same time. However, Defendant 2 refused to ask Nonindicted 8, who was in the same color as the Defendant’s body, to leave the body of the Defendant at the same time and to stop the sale of the goods at the same time. However, Defendant 2 did not ask Nonindicted 8 to leave the body of the Defendant at the same time as the body of the Defendant.

7) On the other hand, Defendant 1 continued to drive the said sirens car and to drive it on the Young-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong, and entered the Dong-dong-dong-Dong-dong-dong-dong-dong-dong-gu around 04:31 on the same day. Defendant 2, who completed the said store, arrived at Busan-do through the Nowon-gu Station around 07:56 on the same day. Defendant 2, who was driving the said sirens car and driving the said sirens through the Han-dong station around 08:51 on the same day, entered the Gyeong-dong-dong-dong-dong-dong-Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-Dong-dong-dong-dong-dong-

8) As a result of video analysis, the clothes worn by the Defendants from Seoul on May 22, 2009 at the time of their entry to the Non-Paju station and the following day are different from the clothes worn at the time of their arrival to Busan and Seoul.

(e) The state of the body of the victim, the result of autopsy and the scene of the crime;

1) 다음 (바)항에서 보는 바와 같이 피고인 2가 경찰 제3회 피의자신문에서 피해자를 살해하고 그 사체를 위 (이하 1 생략) 토지에 매장하였다고 진술함에 따라{피고인들에 대한 각 경찰 피의자신문조서 등은 증거능력이 없는 관계로 다음과 같은 다른 증거에 의한다. 이하 같다. 당심 증인 공소외 14의 법정진술(제8회 공판기일), 원심 제5회 공판조서 중 피고인 2의 진술기재(공판기록 제533면, 경찰 자백시 피해자와 말다툼하다 망치로 때려 피해자를 살해하고 원골저수지 쪽으로 가서 사체를 묻었다고 진술하였다는 취지이다)} 경찰에 의해 피해자의 사체가 발견되었다. 발견 당시 피해자의 사체는, 옷이 모두 벗겨진 채로 검정 비닐로 양쪽 손목이 뒤로 묶여져 있고 양쪽 발목도 묶여져 웅크린 자세를 취하고 있었으며, 비닐 2장으로 머리와 등 부위가 각각 싸여진 다음, 청색 비닐봉지 약 46장으로 다시 온몸이 겹겹이 둘러 싸여 있었다. 또 그 상태에서 이불가방 2개를 겹쳐 사체를 넣고 이어서 녹색텐트 2개로 둘러싼 다음 노끈을 겹겹이 둘러가며 묶는 등 피해자의 사체는 상당히 견고하고 밀봉된 상태로 포장되어 있었다.

2) As a result of the body autopsy of the victim, the victim suffered 12 seats in the face of this part, including about 4.5cm in diameter and suffered 7 parts in the face of this part, including 5 parts, 7 parts in the head part, etc. The price was also determined by 5 or more, such as other trees, the left part, the chest, the upper part, the upper part of the chest, and the sound part, and the blood damage was directly identified as a private person. Various toxic substances were not detected, but the blood alcohol concentration of the victim was found to have been 0.326%, and the blood alcohol concentration of the victim was found to have been 0.35% in the blood alcohol concentration. In light of the fact that the blood alcohol content was found to have been 0.35% in the blood alcohol content, the blood alcohol concentration of the victim was very high in the blood alcohol content of the victim, and the victim was not found to have been found in the body of the victim's body under the presumption of the body of the victim.

3) The factory price of this case consists of a building and a math of the second floor, which is open to the neighboring house. At the time of this case, the building consists of two residential floors and one floor, which is a warehouse. At the time of this case, there was a machine used by Defendant 2, etc. in the past when Defendant 2, etc. engaged in implied manufacturing and selling business and there was a lot of plastic paper bags in that machine (the statement on the fourth trial date of the trial of the trial of the concerned witness Nonindicted 12). Meanwhile, on June 2, 2009, at the time of the on-site inspection by the police at the time of the on-site inspection by the police, there was a tent of a kind similar to the body of the victim, and a two dust, including plastic paper for plastic paper, was installed with water, and water and sand was found in the floor. In this case, the said warehouse was found to have a weak trace such as blood, but was not confirmed to have been stikingd by blood.

(f) The Defendants’ attitude and change in the investigation and trial process

1) At around 10:00 on May 24, 2009, the instant investigation began when Nonindicted 1’s wife Nonindicted 1 reported to the police the victim’s leaving home. However, the victim’s family members were suspected of not having been changed by Defendant 1, etc. prior to the police report. Accordingly, around May 23, 2009, the victim’s family members found Defendant 1’s non-resident residence and met Defendant 12. In this case, Nonindicted 12 responded to the purport that her husband went to Japan (Evidence No. 258 of the evidence record). In addition, around May 23, 2009, Nonindicted 3 called the victim’s her husband to Defendant 1 and carried out the victim’s whereabouts on phone to the police, but Defendant 1 did not see whether the victim was missing or not.”

2) On May 25, 2009, the Defendants started the police investigation on the Defendants, and on May 25, 2009, the Defendants met only at the Daegu △△ Hospital. Defendant 2 replaced the construction of the rental car at the 17:10 side on the same day on the way he drives the said rental car and returned to Seoul, and returned to Seoul.

3) On May 26, 2009, the following day, the Defendants were arrested on each emergency arrest on May 26, 2009. At the time, Defendant 1’s left hand, etc. had a defest condition (Evidence No. 224 of the evidence record) and Defendant 2’s right hand hand hand hand hand over the right part of Defendant 2 was somewhat off (Evidence No. 225 of the evidence record).

4) Defendant 1 denied the suspicion that he murdered and abandoned the victim’s body through the police investigation by the prosecution, the lower court, and the trial as follows.

A) Defendant 1 refused to make a statement on most important questions in the process of investigation by the prosecution, and the summary of Defendant 1’s answer is that: (i) Defendant 2 was unaware of the fact that Defendant 2 did not have contact with Defendant 2 before he went to the Republic of Korea; and (ii) Defendant 1 was ordinarily going to Busan from the enemy penta to Busan, using the national expressway and the national expressway in the South Sea via the junish station; and (iii) on the day of the instant case, Defendant 1 used the border through the yellow Tri station in comparison with the above ordinary route without any justifiable reason. Meanwhile, around June 19, 2009, the police around May 23, 2009 under the investigation by the prosecution, the investigation report on the passage of the Defendants’ vehicle at the location of the Hariri-ri and the Gongbuk-dong, Chungcheongnambuk-do, Chungcheongnam-do.

B) On the first trial of the court below on July 8, 2009, the defendant 1 stated to the effect that the factory price of this case arrived at around the day of the instant case and remains temporarily, and that the factory price arrived at the red gate around 01:30-1:40 on May 23, 2009, and that the factory price arrived at the red gate, and that the factory price arrived at around 50 to 1-hour stop from around 2009 to Busan.

다) 피고인 1은 2009. 9. 28. 원심 제4회 공판기일에서는, 손등의 상처는 경찰에 체포된 후 알게 된 것으로서 손톱깎이로 손톱정리를 하다가 긁혀 살이 나온 것을 손톱깎이로 깎아내며 생겼고 별로 깊지도 않고 특별한 것이 아니라는 내용의 진술을 하였다. 이어서 2009. 10. 9. 원심 제5회 공판기일에서는 기존의 진술을 대체로 유지하면서도, ① 무주요금소를 나와 근처에 있는 적상면 펜션으로 향하다가 피해자의 요구에 따라 방향을 돌려 이 사건 공가로 향하면서 약 1시간이 소요되어 같은 해 5. 22. 자정 전에 이 사건 공가에 도착하였고, ② 약 35-40분 거리에 있는 적상면 펜션에서 약 2시간 머물다가 부산으로 출발하였으며, ③ 영동 방면으로 가는 도중 오산삼거리 부근에서 피고인 2가 경적을 울리며 따라오기에 압치휴게소 부근에서 차량을 세우고 피고인 2의 렌트 차량을 타고 오던 길을 따라 가면서 이야기를 했는데 특별한 내용은 없었다는 취지로 진술하고, 이후 피고인 1은 당심에 이르기까지 대체로 비슷한 취지의 변소를 하고 있다.

4) Meanwhile, Defendant 2 had a significant change in the content of the statement during the investigation and trial as follows.

A) Defendant 2, at the early stage of the police investigation: ① on May 2, 2009, asked the victim to talk about the ground issue; ② around 21:00 on the same day, he left the door of the factory to a sirend vehicle with a sirend vehicle. ② The victim appears to have been on the part of Defendant 1 because the door of the factory of this case was locked, and the door of the factory of this case was in the vicinity of the factory charge, ③ the victim asked the victim to inquire about the Seoul land, but the victim asked that he could not seek such person, and then, the victim took 1,50,000 won from Defendant 1 and 2: (4) the police text message was sent to Seoul around 23:0 of the same month; and (5) the police text message was sent to Defendant 20:0 of the initial date of the investigation; and (5) the content of the text message sent to Defendant 20:20 of the initial date of the investigation.

(B) However, Defendant 2 continued to carry out the crime on the basis of telephone call, closed-circuit screen, etc. (hereinafter “Defendant 2”) and agreed that the victim would be on the ground, and met with Defendant 1 while waiting to arrive at the sirens first, Defendant 2 got off the victim’s body while waiting to do so. ② Prior to the victim’s 20,00, 200 won, the victim’s body was removed from the victim’s hand, and the victim’s body was removed from the victim’s body, and then his body was frightened into the victim’s body and frightened into the victim’s body, and then the victim was frighted into the victim’s body and frightened into the victim’s body, and then the victim was frighted into the victim’s body and frightened into the victim’s body, and then the victim was frighted into the victim’s body, and then the victim was frighted into the victim’s body.

C) However, unlike the previous statement at the time of the 6th interrogation of the suspect, Defendant 2 revealed that he was at the scene of murder and participated in the abandonment of the body (the eighth trial date). However, the relationship with Defendant 1 was denied thereafter.

D) Defendant 2 stated in the prosecutor's office and the court below that ① it was a starting point for the past as stated by the police as a result of murdering victims, but Defendant 1 did not participate in the crime regardless of the victim's official leave and did not contact with Defendant 1. ② Defendant 1 stated that he did not have contact with Defendant 1 on the way that he did not know that he did not come to the state, and that he did not have contact with Defendant 1. The fact that Defendant 1 was at the scene of the crime is not punished as murder, on the other hand, Defendant 1 argued that Defendant 2 was a false statement since he was the police officer's reply that punishment might be frightened, and that Defendant 1 could not take place at the scene of the crime. Meanwhile, Defendant 2 made a false statement on June 3, 2009 to the effect that Defendant 1 was not a new closed-circuit victim's visit, but it was found that Defendant 1 did not have a 7000-day and a new closed-circuit victim's statement to the same effect.

E) After the judgment of the court below, Defendant 2 maintained the previous position on January 6, 2010 by the date of the first trial of the court below, and the same purport was the same as the statement in the grounds of appeal. However, Defendant 2, after the second trial of the court of first instance on January 27, 2010, came to make all new arguments that are different from the previous one, as seen in the main text of the grounds of appeal as seen earlier.

(3) Review

(A) Whether Defendant 1 committed the crime of murder and abandonment of the victim’s body

In full view of the following reasons and the grounds, Defendant 1 led the instant crime of killing the victim and abandoning the dead body.

1) According to the above facts, ① at least KRW 1,639,982,120 has been borne by Defendant 1 at the time of the instant case, while there was no sufficient capacity or method to repay the large amount of debt to the victim, such as the specific source of revenue, etc. It seems that there was no special solution even after May 22, 2009, the time of repayment to the victim continued for several months. ② On the other hand, the victim was promised from Defendant 1 to pay the total amount of the existing debt by May 22, 2009, which is the date of the instant case, by which the victim had been promised to do so, and on this condition, the victim could not have been paid the total amount of the debt by Defendant 1 only on May 22, 2009, and it was unreasonable for Defendant 1 to use his property as collateral, and thus, the victim could not have been paid a considerable amount of debt to Defendant 1 until May 22, 2009.

2) According to the above facts, ① the victim was accompanied with all of the defendant siblingss on the day of the instant case, or made a promise, and, in particular, the victim was accompanied by the defendant 1 because there is very important purpose of using the defendant's body that he was repaid his debt, so there seems to be little possibility that the defendant 1 could have left his residence or the enemy side gate, etc. while he was unable to repay his debt after his arrival. ② The victim appeared to have arrived with the defendant 1, and ② from around May 22, 2009 to around 17, 2009, it is apparent that the defendant's body was killed between the defendant 1 and the victim's vehicle driving form from around 23:02:49 on the closed circuit to about 5 hours on the screen of the same month, and it seems obvious that the body of the defendant was loaded at any one of the above closed-circuits, and there is no possibility that the victim or the body of the victim could have been killed.

3) In addition, according to the above facts, Defendant 1 and Defendant 2 sent the victim and Defendant 2 a telephone call immediately before the date of the instant case on three occasions, each of the three occasions between the victim and Defendant 2, and Defendant 1 sent the victim and Defendant 2 a telephone call at each of the following circumstances: Defendant 1’s Seoul departing point, the state of movement without the owner, and the state of movement without the owner, etc. on the day of the instant case. In addition, Defendant 1 had the victim and Defendant 2 informed and controlled the situation of movement on the day of the instant case. According to the above facts, Defendant 1 instructed Defendant 2 to get the victim into the new wall and to pay the expenses and to lease the vehicle. Considering these circumstances, Defendant 1 is sufficiently recognized as planned and prepared to commit the instant crime in advance.

4) Meanwhile, as seen earlier, Defendant 1 responded to the question of the victim’s family members who were located at the early stage of the investigation, such as concealing the fact that he was accompanied to the victim’s whereabouts on the day of the instant case. Defendant 1 continued to change the contents of the statement in line with these materials whenever objective evidence, such as telephone details or vehicle passage records, is discovered with respect to important matters on the day of the instant case, including the time when the victim and the instant official leave arrived at, the time when he arrived at, and the time when he arrived at, the instant official shop and the instant official shop, and the time when he arrived at the enemy, etc.

5) After arrival at the other unclaimed week, all the Defendants and the victims’ cell phones immediately take place, and Defendant 2 attempted to call from Nonindicted 9 to eight times, and Defendant 1 was refused to leave work, and Defendant 2 attempted to do so. Then, Defendant 1 sent a text message that appears to have been reported on the disposal of the body as above. Defendant 1 differs from the clothes that Defendant 1 suffered at the time of his unclaimed landing and the clothes that Defendant 1 was discovered from Defendant 1’s hand, etc., and Defendant 1 planned and carried out the murder and abandonment of the body.

(B) Whether Defendant 2 took part in the crime of murdering or abandoning the victim’s body

In full view of the following reasons and grounds, Defendant 2 is considered to have participated in all murder and abandonment of the victim in collusion with Defendant 1.

1) Defendant 2 asserts that the confession made at the former investigation agency and the lower court is false. However, prior to discovery of the body of the Defendant 2, Defendant 2 first acknowledged the act of murder of the victim at the third time during the interrogation of the body of the police prior to discovery of the body of the victim, and stated that Defendant 2 died of the victim at a price higher than that of the victim, which was revealed as a result of autopsy. Moreover, the horses stated by Defendant 2 as the first part of the body of the victim, as one of the most superior wifes of the victim, are difficult to properly understand if the victim did not directly participate in the murder.

또한 피고인 2가 묘사한 사체의 모습 즉, 옷을 벗긴 채 손목을 뒤로 묶고 발목을 묶어 웅크린 자세로 만든 다음 피가 흐르지 않도록 다량의 비닐 봉지와 천막 등을 사용하여 감쌌다는 내용은 살해와 사체유기 행위에 직접 가담하지 않은 사람이라면 진술하기 어려울 정도로 구체적이고 그 주요 취지에서 실제의 모습과 너무나 일치한다.

Although Defendant 2 changed from Defendant 1 to Defendant 1’s position, Defendant 2’s statement is difficult to accept solely based on the fact that the content alone leads to an accurate memory or conjection of the detailed and specific part of the content. Moreover, it is difficult to accept even in light of the fact that the above Defendant stated that he did not have enough time to keep the specific method of crime with excessive time.

2) Next, unlike Defendant 2’s legal action, it is determined that the above Defendant committed a written promise with the victim on the day of the instant case. In other words, as seen earlier, Defendant 2 said that Defendant 2 had been forced to leave the vehicle free to sell 20,000 square meters from the land to Nonindicted 7. On the day of the instant case, Defendant 2 said that there was a person who left the land free to the land on the day of the instant case. Defendant 2 said that Defendant 2 had exchanged with Defendant 2 and exchanged with Defendant 2 on the day of the instant case, and that Defendant 16 had to receive money “Iskn’s land and receive money.” Nonindicted 16 said that “Iskn’s land on the day of the instant case, and there is no way to accept another person at 9 hours on the day of the instant case, and that Defendant 2’s mobile phone did not immediately arrive on the day of the instant case, and that Defendant 1 and Defendant 2’s mobile phone arrive on the day of the instant case.

3) As seen earlier, Defendant 2’s first rejection of the charge against the victim during the police investigation process, and the aforementioned Defendant acknowledged part of the charge as he was subject to the police officer’s objective evidence and to the non-conformity of the statement. In light of the process or circumstance of the statement, it is difficult to view the appearance of Defendant 2 as the attitude of the person who was in mind of committing an offense unrelated to the victim upon Defendant 1’s request. Moreover, denying the conspiracy with the accomplice by asserting an contingent crime and an accomplice is an unfavorable act to a certain extent, and thus, it is difficult to view that Defendant 2’s rejection of liability for an offense such as murder on behalf of another person even if there was no punishment, and thus, it is difficult to accept that Defendant 2’s rejection of liability for an offense, such as murder, based on the empirical rule, cannot be readily denied if it was based on the circumstances that Defendant 2 did not have any choice but any more reasonable reason before and after the investigation and the first instance court.

4) In addition, in light of the above facts: (a) the method and method of the instant crime; (b) the victim was at the top of 12 places in the head, face, etc., but did not have any low resistance trace in the body; (c) the victim was clearly aware that the vertical price is 0.326%; (d) the victim’s blood alcohol content reaches 0.326%; and (e) the packing method of the body was considerably tight, solid and solid; and (e) the body was released from a considerable place away from the place of the crime, the instant murder and abandonment of the body was practically impossible to be committed by a single criminal; and (e) Defendant 2 directly participated in each of the instant crimes.

5) In addition, Defendant 2’s request to Nonindicted 9 and 8 was rejected by Nonindicted 9’s request, and Defendant 1 attempted to make a call more than eight consecutive times, and Defendant 1 sent the above text message. In the case of Defendant 2, the circumstances, such as the clothes that were incurred when unsatisfed and the clothes that were incurred when going to Seoul, are different from each other, support the fact that Defendant 2 took part in the crime of murder and abandonment of the body of this case in collusion with Defendant 1.

(4) The theory of lawsuit

If it is determined by comprehensively assessing and assessing the various indirect facts and circumstances admitted by the evidence as seen above, Defendant 1 bears a large amount of obligation to the victim amounting to KRW 1,700,000,000 or more, and it is practically difficult for the Defendants to discharge their obligation, and thus, the Defendants conspired to attract the victim to a non-state and completely control his resistance, and then the Defendants’ price, murder, and buried the body. Accordingly, the Defendants’ assertion of mistake of facts is without merit.

D. Judgment on the misapprehension of legal principles as to the murderer part

(1) Summary of the revised facts charged

In collusion, the Defendants: (a) transferred the ownership of each real estate offered as security to Defendant 1’s victim Nonindicted 17, in order to evade the loan debt amounting to KRW 1,64,502,120; (b) transferred the ownership of each real estate again to Defendant 12’s wife Nonindicted 12; and (c) immediately upon cancellation of the right to collateral security, immediately after the cancellation of the right to collateral security; (d) transferred the registration-related documents; and (e) exempted Defendant 1 from paying the above debt amount to Defendant 1 by making the same condition that the sole legal evidence of the legal obligation was discharged by completing the registration of ownership transfer and the registration of cancellation of collateral security; and (e)

(2) Determination of the changed facts charged

(A) To establish robbery, first of all, the establishment of robbery must be established. To establish robbery, there must be an intention of unlawful acquisition or unlawful acquisition. In order to recognize "acquisition of profit from property" under the latter part of Article 333 of the Criminal Act, which is the requirement for the so-called forced acquisition under the latter part of Article 333 of the Criminal Act, there should be circumstances where property gains actually have been 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 a creditor exists and the method of confirming the existence of a claim is secured by his/her heir, even if he/she murders the creditor with the intent to evade the obligation, it is temporarily exempted from the creditor's trend, and it is difficult to view that the control of profit from property has been transferred from the creditor to the offender, and in such a case, the crime of robbery cannot be established (see Supreme Court Decision 2004Do1098, Jun. 24, 2004).

(2) Defendant 1 was liable to the injured party at least KRW 1,639,982,120 at the time of committing the instant crime, but the Defendants conspired to evade the said liability and received necessary documents from the injured party to return the real estate provided as the previous security, and subsequently murdered the injured party.

However, as seen earlier, ① the victim has a very strict character, almost all transactions through a financial account, and accurately and specifically recorded the details of the transaction with Defendant 1, and ② the victim entered them directly in the form of mera or set, etc., even before the life of the victim. The date and time of each loan, principal, interest, lending terms, the actual amount of payment deducting interest, the indication of secured real estate, the expected execution method of security right, the status of repayment of principal and interest, etc. are very detailed and specific. ③ In addition, the above statements are almost consistent with the objective materials such as financial data or the real estate copy of the real estate register. ④ In the mera or set of the above victims, the contents of the transaction with Defendant 1, the debtor, are stated at a place where the exact name of Defendant 1, the debtor, and without any combination with the transaction details with the other parties, the contents of the transaction are not included, so that the victim can sufficiently understand the existence and contents of the claim against Defendant 1, and are worth being provided by Defendant 1 compared with the amount of the claim.

In addition, according to the above evidence, especially the statement made by the prosecutor's statement as to the non-indicted 1 and 2, the victim was found to have been the heir's non-indicted 1 and 18, and 19; 7 The above Nomart or Memar had been submitted to the non-indicted 1, etc. at the investigation stage of this case because the heir, such as the non-indicted 1, know the existence well-known; 8 The victim provided loans to the defendant 1 through the bank account most of the financial loans to the defendant 1; on the other hand, in 2009, the two statements provided as physical collateral in the victim's real estate loan to the defendant 1 are clearly indicated in the real estate register; 9) Accordingly, the investigative agency grasped the claim details and amount to the victim's defendant 1; 100 won after the registration of cancellation of the right to collateral security and the transfer of ownership in the future; 200 won after the above request for provisional seizure; 160% of the heir's real estate.

Comprehensively taking account of the above circumstances in this case, the existence of Defendant 1’s obligation is apparent as well as the case where there is an heir of the victim and the method of confirming the existence of his/her heir’s claim is secured. Thus, even if the Defendants were to kill the victim after receiving the registration-related documents by deceiving the victim, and completed the registration of transfer of ownership and the registration of cancellation of collateral security by using the above documents, this is merely temporary exemption from creditor’s trend, and it is difficult to view that the control of property profits was transferred from the victim to Defendant 1, thereby making it difficult to view that the control of property profits was transferred from the victim’s future. Otherwise, there is no evidence to prove the facts charged by robbery.

(3) Therefore, the Defendants’ charges of robbery constitute a case where there is no proof of crime, and thus, there is reason to discuss the above appeal as to the misapprehension of legal principles of the Defendants.

However, the facts charged as to the robbery of this case include the facts charged as to the crime of murder, and even if the establishment of the crime of murder is acknowledged against the Defendants, there is no concern about the actual disadvantage to the Defendants’ exercise of their right to defense, and as such, this court recognizes the establishment of the crime of murder against the Defendants, it shall be judged after the destruction.

3. Conclusion

As above, the part of the judgment of the court below which rendered a single judgment against the Defendants by treating the robbery subject to reversal as concurrent crimes under the former part of Article 37 of the Criminal Act and the remaining crimes as concurrent crimes under Article 37 of the Criminal Act shall be reversed in its entirety.

Therefore, without further proceeding to decide on the assertion of unfair sentencing on Defendant 1 of the Defendants and the Prosecutor, the lower judgment is entirely reversed under Article 364(2) and (6) of the Criminal Procedure Act, and the following is again decided through oral argument.

Criminal facts and summary of evidence

The summary of the facts constituting the crime and the evidence acknowledged by this court is as follows, and the part of paragraph (1) of the crime of the judgment below is modified as follows, and the summary of the evidence of the judgment below added “each legal statement of Nonindicted 7, 12, 13, 10, 8, 14, and 15 of the witness of the court of first instance” to the summary of the evidence of the judgment below, and except for the modification of “1. Nonindicted 9’s written statement of the police statement” to “1. Nonindicted 9’s written statement”, it is identical to each corresponding column of the judgment of the court below. Thus,

“1. Murder

Defendant 1 borrowed at least KRW 1,639,982,120 from the victim Nonindicted 17 (Nam, 48 years of age) to May 19, 2008, from May 21, 2009. The Defendants, who were the siblings, conspired to kill the victim and avoid paying the debt to Defendant 1.

Accordingly, Defendant 2 received KRW 1.3 million from Defendant 1 to Defendant 1 at 03:20 on May 22, 2009 at 03:20, the Songpa-gu Seoul Coast Guard (hereinafter 23 omitted) about KRW 1.3 million of the criminal fund, and decided to 1.4:0 on May 14:00 of the same day, he received (vehicle number 1 omitted), and paid KRW 700,000 of the above criminal fund to Defendant 2 at her rental expense, and then driving the dedicated car at around 20:30,000,000,000,0000,000 won, from Defendant 1 and Defendant 2 at around 20,000,000,000 won, and, at around 20:0,000, it arrived at Defendant 1 and Defendant 2 (hereinafter “instant public vehicle”) without Defendant 1’s arrival on the same day.

Since then, between 01:00 the following day, the Defendants made the victim drink alcohol on the second floor of this case, let the victim drink alcohol, carried the victim into the warehouse on the first floor, and sponsed the victim into the network (4.5cm in head diameter), and spons about 12 times the head and face of the victim, spons about 12 times, spons, left chest, right shoulder, spons, sound spons, etc., and killed the victim by causing the victim to die due to the hair, bones, brain damage, etc.

Application of Statutes

1. Article applicable to criminal facts;

Articles 250(1) and 30(1) of the Criminal Act, Article 30(2) of the Criminal Act, Article 161(1) and Article 30(2) of the Criminal Act, Article 250(1) of the Criminal Act, Article 30(3) of the Criminal Act, Article 161(2)

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Article 38(1)1, and Article 50 of the Criminal Act (Inasmuch as the person selects the punishment for life in the crime of homicide which is a serious crime, the other punishment shall not be imposed);

(b) Defendant 2: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act [limited to the sum of the long-term punishments of the above two crimes]

1. Confiscation;

Article 48(1)1 of the Criminal Act

Reasons for sentencing

1. Defendant 1

The crime of this case is a case where murdering a victim who is the creditor, killed the victim at a harsh price of at least 10 times with the face and head by inducing the victim as if he/she met his/her obligation, and her body is sealed, and the crime of this case is a case where he/she kills the victim who is the creditor, and kills the victim at least 10 times with his/her face and head, and solid packaging of the body to destroy the evidence, and the motive is extremely poor.

The victim of this case lost his/her life due to a harsh appearance to the extent that it is difficult to identify the face, and there is no pain and loss that the bereaved family of the victim would suffer.

Nevertheless, the above defendant repeats only his argument that does not comply with the doctrine without being divided from the beginning to the closure of the party deliberation. Although the above defendant had a lot of time and opportunity so far, the above defendant was dismissed until the end. As to whether there is a room for edification improvement of the above defendant, this court has no choice but to be negative.

However, the choice of life sentence should be extremely careful, and even though it seems that there is no room for edification and improvement at present, it is only a complete deprivation of the remaining time and opportunity of the above defendant.

From this point of view, considering all the circumstances that form elements of sentencing, such as the above defendant’s age, character and conduct, environment, intelligence, motive, background, means, method and consequence of the instant crime, circumstances after the crime, investigation and trial process, it is deemed inevitable to permanently isolate the above defendant from this society, and thus, the above defendant should be sentenced to life imprisonment for the above defendant.

2. Defendant 2

The crimes of this case are equally identical to the above defendants in terms of the smuggling, interview and cruel aspects.

In addition, even though the above defendant reversed his statement in several times from the investigation process to the trial of the party, it is difficult to view that all of them only depend on the interests of the party, and that they were true and reflected once.

Therefore, it is inevitable for the above accused to be sentenced to a more severe punishment: Provided, That in the event that the degree of participation in the crime is lower than the accomplice, and other factors of sentencing are comprehensively considered, it does not seem that there is no room for edification improvement against the above accused, and thus, a sentence of 20-year imprisonment shall be sentenced.

Parts of innocence

Of the facts charged in this case, the summary of robbery is the same as that of the above 2. D. (1), and this constitutes a case where there is no proof of crime as seen in the above 2. D. (2) and thus, a not-guilty verdict under the latter part of Article 325 of the Criminal Procedure Act should be rendered. However, as long as it is found guilty of the above murder in relation to this crime, the judgment of innocence shall not be rendered separately in the text.

It is so decided as per Disposition for the above reasons.

[Attachment]

Judges Lee Jong-tae (Presiding Judge)

심급 사건

-서울동부지방법원 2009.11.13.선고 2009고합188

서울고등법원 2010.5.28.선고 2009노3306

-대법원 2010.9.30.선고 2010도7405

원심판결

-서울동부지방법원 2009. 11. 13. 선고 2009고합188 판결

본문참조판례

-대법원 2004. 6. 24. 선고 2004도1098 판결

본문참조조문