A

Defendant

Choi Young-gu

Attorney B and one other

Seoul Western District Court Decision 2004Ra1581 Delivered on January 5, 2005

The guilty portion of the judgment of the court below shall be reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The one day of detention before the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The court below found the defendant guilty of this part of the facts charged on the ground that the recording tape verification by the court of the original trial did not verify the original (contests and dydians) but verified the general tape once again recorded, and there is no evidence to confirm whether the recorded voice was the defendant.

The defendant only made a statement to the effect that he would demand the agreed amount by the inducement of C, and there was no intention to commit a crime to take money by threatening C.

B. Unreasonable sentencing

In light of the following facts: (a) the Defendant did not have any previous record before participating in the D Apartment Emergency Countermeasures Committee; (b) suffering from urology, high blood pressure, etc. due to defoliants; (c) C was the father and the father by unlawful means while entering the partnership of the Housing Redevelopment Association in the instant E area; and (d) not demanding KRW 300 million with personal compensation for distributing to the association members; and (c) there was no property acquired by the instant case, the sentence of the lower court is excessively unreasonable.

2. Determination:

A. Judgment on misconception of facts or misapprehension of legal principles

(1) We examine the admissibility of evidence of the recording tape verification.

Article 313(1) proviso of the Criminal Procedure Act provides that the contents of the recording tape are the same as those of the recording, and thus, evidence is still the content of conversations recorded on the recording tape. Among them, the defendant's statement does not differ from the documents in addition to Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant does not agree that the recording tape can be admitted as evidence, in order to use the defendant's statement in the recording tape as evidence, it shall be proved that the defendant's statement in the recording tape was recorded as the defendant's statement in a preparatory hearing or during a public trial pursuant to the proviso to Article 313(1) of the Criminal Procedure Act, and it shall be acknowledged that the statement was made under particularly reliable circumstances (Supreme Court Decision 2001Do3106 Decided October 9, 201). However, C, the 4th day of the court below, as witness, was present at the recording tape and the defendant's statement was admissible as evidence, and there is no room for the defendant's statement or credibility of the statement.

(2) Next, we examine whether the Defendant had the criminal intent to commit the crime of robbery.

C’s statement in the court of the court below and the statement of the police in the statement of the court of the court of the court of the court below. Considering the defendant’s statement in the statement of the court of the court of the court of the court below, the defendant demanded C to pay KRW 1,00,000,000 as well as KRW 7,330,000,00,000,000,000,000,000,000 won, which were unfairly collected by C, and if the defendant responded to this demand, he would no longer have been revoked, and if the defendant did not respond to such demand, he would no longer have filed a complaint. However, it may be viewed that the demand for return of additional contributions is a legitimate exercise of rights. However, the defendant’s claim that the defendant made efforts to pay KRW 300,000,000 to members for the benefit of members is not justifiable. Therefore, it is reasonable to accept this part of the defendant’s claim that he made a threat to C at the time of the defendant’s intent.

B. Determination on the assertion of unfair sentencing

However, there is no criminal conviction for the defendant, even before he was sentenced to a suspended two years for the violation of the Assembly and Demonstration Act in 2003, which was sentenced to a suspended two-year imprisonment for the violation of the Act on Assembly and Demonstration, and even after being sentenced to a suspended two-year imprisonment for the violation of the Act on Assembly and Demonstration, C appears to have been in a part of raising an objection from the standpoint of the union members, and C actually was punished as a crime of occupational breach of trust in relation to the performance of duties as the president of the redevelopment association in relation to the performance of duties as the president of the association. The defendant started the emergency countermeasure committee in order to protect the interests of the union members and invested a large amount of time and expenses, it seems that the crime of this case was caused to the crime of this case. The crime of this case was committed to the attempted crime of this case and there is no profit gained by the defendant, and considering other various sentencing conditions as provided for in Article 51 of the Criminal Act, the sentence of imprisonment for 10 months is excessively unreasonable.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the guilty part of the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following decision is rendered after pleading

The gist of the defendant's criminal facts and evidence is as stated in each corresponding column of the judgment of the court below, except for adding "the part concerning the defendant's statement among the entries in the evidence verification protocol of the court of the court of the original instance" to "the part concerning the defendant's statement among the entries in the evidence verification protocol of the court of the original judgment

1. Article applicable to criminal facts;

Articles 352 and 350 (1) of the Criminal Act (Selection of Fine)

1. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of Punishment as provided for in Article 2 of the Judgment of the original court with More Criminal Facts)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

Judges Cho Jong-soo(Presiding Judge)