2017Gohap316 Special Robbery, thief, partial recognized, decrising

p) Violation of the Specialized Credit Finance Business Act

A

More than a record (prosecution) and Kim Jong-mal (Trial)

Attorney B

July 20, 2017

A defendant shall be punished by imprisonment for three years.

The charge of special robbery among the facts charged in the instant case is acquitted.

The summary of the acquittal part in this judgment shall be publicly notified.

Criminal facts

【Criminal Power】

On July 8, 2016, the Defendant was sentenced to imprisonment with prison labor for larceny at the Seoul Central District Court on July 8, 2016 and completed the execution of the sentence on September 27, 2016.

【Criminal Facts】

The Defendant, while driving a car car in Gangnam-gu Seoul, Seoul, Seodong and Seo-gu, had the victims who are unable to discern things by drinking alcohol while driving a car, and had them take the victims by driving a car as if he was a taxi, and decided to take the victims by using credit cards, etc. in the calculation of taxi charges, etc., and then withdraw cash by using it.

1. Larceny;

A. On February 8, 2017, around 01:32 to 01:40, the Defendant, at the time of cash withdrawal installed outside of the “D convenience store” in the Gyeonggi-si Si, Gyeonggi-si, and then deleted KRW 1,90,00,00 in cash by inserting the e-mail card in a cash withdrawal machine managed by the Victim BGF Capital, and inputting the password known from E.

Accordingly, the defendant stolen the victim's property.

B. On February 8, 2017, at around 01:53 to 01:56, the Defendant, at the time of cash withdrawal set up in the “G convenience store” located under the “G convenience store located under the former F building 165” during the Gyeonggi-si, the Defendant entered the e bank cream card in the cash withdrawal machine managed by the victim slotnet, and then withdrawn KRW 90,000 in cash by entering the password known from E.

Accordingly, the defendant stolen the victim's property.

C. On February 8, 2017, the Defendant, at around 02:07:07 to 02:25, was installed in front of the “convenition store located in H in the Gyeonggi-si, Gyeonggi-si, and then stolen the e bank cream card, which was put in a cash withdrawal machine managed by the victim BGF Capitalnet, and then withdrawn KRW 3.70,000 in cash by entering the password known to E.

Accordingly, the defendant stolen the victim's property.

D. At around 2017, February 8, 2017, 02:34 to 02:41, the Defendant, at the time of cash withdrawal set up in front of the “K convenience store in Yandong-gu, Yandong-gu, Yandong-gu, Yandong-gu, Yandong-gu, entered the victim BGF Capital, and then withdrawn KRW 1730,000 in cash, by entering the password known to E.

Accordingly, the defendant stolen the victim's property.

2. Larceny and violation of the Specialized Credit Finance Business Act;

(a) Theft of L credit cards and cash fraud at a cash withdrawal machine;

(a) Credit card theft;

On December 29, 2016, at around 23:21, the Defendant discovered the victim L who was under the influence of alcohol in the road near the subway station of the subway station of the subway station of Gangnam-gu Seoul, Seoul, and caused the victim L to take off the back seat of the passenger car by driving k5 cars (M) as if the Defendant was a taxi. On the same day, at around 23:59 on the same day, the Defendant stopped after operating a blick-water and a down to the lower seat of the passenger car, and after receiving one bank in the name of the victim from L in the name of the victim on the pretext of calculating the taxi fee, the Defendant did not pay the card to L to calculate the taxi car amount. If the Defendant is informed of the password, he/she would withdraw the taxi fee from the cash withdrawal."

Accordingly, the Defendant stolen one credit card of one bank, the market price of which is unknown from L.

(2) the theft of cash or the use of stolen credit cards at the cash withdrawal;

On January 12, 2016, 30, 00:40 to 00:48, the Defendant entered the stolen L Bank’s credit card into a cash withdrawal machine managed by the victim BGF Capital, as described in the above paragraph (1), and then withdrawn 1.57 million won in cash as a cash service.

Accordingly, the defendant stolen the victim's property and used the stolen credit card.

(b) Theft of credit cards by P and cash withdrawal machines;

(a) Credit card theft;

On February 2, 2017, at around 23:58, the Defendant: (a) discovered the Victim P who was under the influence of alcohol in the vicinity of the subway 2 subway station located in Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government, and had the Defendant take the back seat of the passenger car by driving the 5-car as if Q is a cab, and let the Victim P take the back seat of the passenger car; (b) on February 3, 2017, at around 00:34, the Defendant stopped the operation of the subway 2 subway lines located in Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government to the back seat of the passenger car; and (c) after receiving the credit card from the victim P to calculate the taxi fee, the Defendant did not pay the taxi card to the Victim P for calculating the taxi fee; (d) notified the password, the Defendant would withdraw the taxi fee from the cash transfer machine." (e.g., the Defendant would withdraw the taxi fee.

Accordingly, the Defendant stolen a credit card of our bank, where the market price is unknown from the victim P.

(2) the theft of cash or the use of stolen credit cards at the cash withdrawal;

(A) On February 3, 2017, at around 01:27:01:33, the Defendant, as described in the foregoing (1), posted the stolen P Bank’s credit card to the cash withdrawal machine managed by the Victim BGFnet Capital, and then withdrawn KRW 1.1 million in cash as the cash service.

Accordingly, the defendant stolen the victim's property and used the stolen credit card.

(B) On February 3, 2017, at around 01:55 to 01:58, the Defendant, at the time of cash withdrawal installed outside of the 'D convenience store' in the Gyeonggi-si, Gyeonggi-si, the Defendant entered the stolen P’s credit card into the cash withdrawal machine managed by the Victim BGF Capital, and then withdrawn KRW 1,20,000 in cash, which came to know from P.

Accordingly, the defendant stolen the victim's property.

(c) Theft of R's credit cards and cash theft at a cash withdrawal machine;

(a) Credit card theft;

On February 20, 2017, at around 23:26, the Defendant: (a) found the victim R who was under the influence of alcohol on the roadside 647-9, Gangnam-gu, Seoul, and was under the influence of alcohol on the road; (b) found the Defendant, as if Q Q was a taxi, was driven by the Defendant, so that the victim R is boarding the back seat of the passenger car; (c) on February 21, 2017, at around 00:32, the Defendant stopped the operation of the subway No. 3 in the vicinity of the subway No. 221, Gangnam-gu, Seoul, with the victim’s credit card bank located in the name of the victim on the basis of the calculation of the taxi charges; and (d) found the victim’s password to be “to withdraw the taxi fee from the cash withdrawal; and (d) found the victim’s password as is.”

Accordingly, the Defendant stolen one credit card of our bank, where the market price is unknown from the victim R.

(2) the theft of cash or the use of stolen credit cards at the cash withdrawal;

(A) On February 21, 2017, at around 02:35 to 02:39, the Defendant: (a) placed the “convenition store located outside of H at the Gyeonggi-si, Gyeonggi-si; and (b) entered the stolen credit card in a cash withdrawal machine managed by the Victim BGF Capitalnet, and then withdrawn KRW 2 million in cash as the cash service.

Accordingly, the defendant stolen the victim's property and used the stolen credit card.

(B) On February 21, 2017, at around 02:54 to 03:34, the Defendant, as indicated in the foregoing (1), placed the credit card of R in Korea, which was stolen, into a cash withdrawal machine managed by the victim’s cryp capital, and then withdrawn KRW 6 million in cash by entering the password known from R.

Accordingly, the defendant stolen the victim's property.

(d) Theft of U credit cards and cash theft from a cash withdrawal machine;

(a) Credit card theft;

On March 1, 2017, at around 01:29, the Defendant: (a) discovered the victim U who was under the influence of alcohol in the vicinity of the Gangnam-gu Seoul Station street on the road near the Gangnam-gu Seoul Station; (b) caused the Defendant to get the victim U to the back seat of the car by driving the car as if the Defendant was a taxi; and (c) stopped on or around 02:29 on the same day, the Defendant stopped the vehicle to the back seat of the car; and (d) issued a credit card under the name of the victim to the U to pay the taxi fee to the U after obtaining the credit card of the new bank under the name of the U to calculate the taxi fee. If the password is known, the Defendant identified the password by stating that “I would withdraw the taxi fee from the cash withdrawal and make the UU to get off the taxi fee.”

Accordingly, the Defendant stolen a new bank credit card that could not know the market price from the victim U.S.

(2) the theft of cash or the use of stolen credit cards at the cash withdrawal;

(A) On March 1, 2017, around 02:37 to 02:40, the Defendant: (a) placed a stolen U’s new bank in the “W convenience store” located in Gwanak-gu, Seoul Special Metropolitan City; (b) put it into a cash withdrawal machine managed by the Victim BGF Capital, and then withdrawn KRW 1.4 million in cash as a cash service.

Accordingly, the defendant stolen the victim's property and used the stolen credit card.

(B) On March 1, 2017, around 02:56 to 02:57, the Defendant entered a stolen U’s credit card bank into a cash withdrawal machine managed by the Korean Electronic Finance Co., Ltd. and then withdrawn KRW 600,000 in cash as a cash service.

Accordingly, the defendant stolen the victim's property and used the stolen credit card.

3. Embezzlements of lost possession; and

On February 22, 2017, the Defendant: (a) taken a taxi with no identification of the number around the subway No. 4 Station of the subway No. 529, which was located in the 529 at the time of the Gyeonggi-do-si, as a passenger, and (b) did not take necessary procedures, such as acquiring 80,000,000 won at the lower seat of the taxi and returning it to the victim, and (c) did not take necessary procedures.

Accordingly, the defendant embezzled the property that has been separated from the possession of the victim.

Summary of Evidence

1. Defendant's legal statement;

1. Partial statement of witness E;

1. Each police statement of the Z, R and P;

1. A written statement prepared by U;

1. A complaint prepared by L;

1. Each investigation report (the tracking of the same line near the place of cash withdrawal, details of cash withdrawal of the suspect, the place of withdrawal and the relation to the same line before and after the crime, further securing of victims, identification of information on the cell phone held by the suspect at the time of emergency arrest on the suspect, identification of the user's information on one cell phone, the course of movement, etc. on the date of emergency arrest on the suspect, addition of the

1. Part I of the deposit withdrawal details, QPS records, vehicle rental contracts, vehicle internal photographs, records, records of seizure, records of seizure, list of seized materials, photographs, neighboring maps posted by the complainants on board, credit card withdrawals, credit card text messages, cell phone text messages, details of transactions of cell phones, time and place for the cab getting on and off the taxi, cell phones images, cell phones photographs, and one copy of the lease contract (M, AA), each of the details of transactions, siren records, QPS records, Q, Q, and M of CCTV evidence video files;

1. Previous records of judgment: Criminal history records, written judgments, search of prisoners and investigation reports (verification of the date of final release from prison);

Application of Statutes

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

Article 70 (1) 3 of the Specialized Credit Finance Business Act / [In full view of the use of stolen credit cards, the use of credit cards in each subparagraph of Article 2-d. (2) of the Decision 2-D.], Article 329 of the Criminal Act / Article 329 of the Criminal Act / Article 360 (1) of the Criminal Act (the embezzlement of stolen credit cards, the selection of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (the penalty and penalty imposed on the violation of the Specialized Credit Financial Business Act due to the use of a stolen U.S. credit card in the largest name)

Reasons for sentencing

1. Scope of punishment by law: Imprisonment with prison labor for not less than one month but not more than 21 years;

2. Scope of recommended sentences by applying the sentencing criteria: Imprisonment with prison labor for not less than one year;

(a) Theft;

【Scope of Recommendation】

(1 to 4 years and 6 months) for the theft of general property, the area of special aggravation (1 to 4 months)

【Special Convicted Persons】

○ Aggravations: A repeated crime of the same kind which does not correspond to the aggravation of a specific crime, where a crime is repeatedly committed using a specific method.

(b) Whether the sentencing criteria are not set for a violation of the Specialized Credit Financial Business Act or for embezzlement of stolen property;

(c) Results of standards for handling multiple crimes: Imprisonment with prison labor for not less than one year (limited to the lower limit of the range of recommended sentences for crimes to which the sentencing criteria apply, since they are concurrent crimes with those to which the sentencing criteria apply);

3. Determination of sentence: Three years of imprisonment;

The defendant reflects his mistake, and the stolen acquired through the crime of embezzlement of stolen property is that the victim temporarily returned to the victim and actually recovered from damage is favorable to the defendant, but the defendant has a record of punishment several times for the same kind of crime, and even though he was sentenced to the punishment by means of the same method as this case, he committed the crime of this case in addition to three months after the execution of the punishment was completed, even though he was sentenced to the punishment by means of the same method as this case, he committed the crime of this case. In light of the Criminal Act of this case, the crime is very poor in the quality of the crime, and the victim did not make any effort to recover damage even if the amount of damage caused by the thief exceeds 20 million won, and the victim expressed his wish to punish all victims because he did not make any effort to recover damage.

Other factors of sentencing, such as the age, character and conduct, environment, motive and consequence of the crime, and circumstances after the crime, shall be determined as per the order, comprehensively taking into account.

The acquittal portion

1. Summary of special robbery among the facts charged in the instant case

On February 8, 2017, at around 00:0, the Defendant discovered the victim E (the age of 35) who was drunk in front of the AC oil station in Gangnam-gu Seoul, and was unable to discern things from things due to drinking in front of the AC oil station in Gangnam-gu, Seoul, and made the Defendant take the victim E by driving the 5-car as if Q Q was a si, and let the Defendant take the back of the vehicle into the back seat of the vehicle. At around 00:40 on the same day, at around 0:40 on the same day, the Defendant stopped after driving the vehicle to the vicinity of the subway powder station in accordance with the revision of the AC oil station in Gangnam-gu, Seoul.

Since then, when the defendant was divingd at the back seat several times with the left-hand play of the victim E and the left-hand part of the back seat, the defendant shouldered the victim E, and then acted as the victim E with a deadly weapon, as the victim E, as he did, with the victim E, with the main use of the bank (21ccm in total, 9ccm in length, 9cc in length). In doing so, the victim E was under the influence of alcohol. If the defendant does not receive the agreement, he shall not send it without giving any money. I will throw away without giving any money." After suppressing the resistance, the defendant took off two copies of the victim E-owned bank and one bank physical card within the part of the victim E, and then came to use the victim E with the secret "I will die without knowing the password."

Accordingly, the defendant took the defendant's dump of the Korean bank and the kyke card of one bank, where the market price cannot be known from the victim E.

2. Although the defendant and his defense counsel's assertion was found to have stolen a physical card from the victim E who was under the influence of alcohol and withdrawn cash by using it, there was no fact that the defendant abuseds the victim or forcibly took the physical card by threatening him with a deadly weapon.

3. Determination

A. The evidence that corresponds to the facts charged by the defendant who assaults the victim E and forcibly took the physical card by threatening the victim E with a deadly weapon is the victim E’s statement, the seized main room room (Evidence No. 1), one diagnosis letter, etc., and the major contents of the victim E’s statement are “the defendant has taken two physical cards by cutting off the knife, threatening him as knife, threatening him as knife, and knife him as knife.”

B. However, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, the evidence alone presented by the prosecutor is difficult to deem that the charge that the Defendant took the physical card by assaulting the victim E and threatening with a deadly weapon was proven to the extent that there is no reasonable doubt.

① At the time of the instant case, the victim E was in a state of drinking two times the amount of usual liquor. After the instant case occurred, the victim E was in a state of drinking alcohol to the company where he was diving and was staying in the house, and stated that he got off the physical card until he confirmed the account at around 13:00 on February 8, 2017 (the witness E’s testimony), the fact that the money was withdrawn was not recognized, and that he was thought to be changed (the victim’s witness E’s testimony). The victim was reported to the police station on February 8, 2017, but failed to properly conduct an investigation without any memory and without any memory, and submitted a written statement specifying the situation at the time of the instant case to the police station around February 12, 2017 (the investigative record6 pages). After that, the Defendant was arrested and sealed, the victim’s statement was prepared on March 25, 2017 (the investigative record).

A victim E, around 00:40 on February 8, 2017, when he/she was under threat of life with a deadly weapon and took two physical cards away on the same day, he/she was under the influence of alcohol to the extent that he/she was unaware of the fact until he/she confirmed the account by chance at around 13:00 on the same day, and on the same day of the case, he/she was unable to properly memory the situation at the time (the victim stated that there was a fact that he/she was " how he/she would keep the offender because he/she was unable to memory at the time" (the victim also stated that he/she was " how he/she would keep the offender at the time because he/she was unable to memory the situation at all) and that it was in a concrete memory after a considerable time after the

In addition, if there was a real situation in which the card should be cut off and the password should be informed upon the threat of life from robbery as stated by the victim's statement, it cannot be said that such a fact is completely impossible until the account is confirmed on the day of the instant case.

② 피해자 E이 2017. 3. 6. 경찰관에게 피해 진술을 할 때 그 옆에서 조사를 받으며 피해자를 보았다는 증인 AD은 "경찰관이 피해자에게 '피고인이 가위 들고 너 협박한 것 맞잖아'라고 하자 피해자가 바로 대답하지 못하고 있다가 '그런 것 같습니다'라고 진술하였고 피해자는 거의 기억이 없는 것 같았다. 피해자가 상황을 제대로 기억하지 못하고 있는데 경찰관이 윽박지르며 상황을 설명하며 답변을 요구하는 것이 이상하다고 생각했다."라고 증언하였다. 증인 E은 위 상황에 대하여 "경찰관이 '정확하게 기억 해라. 왜 이거에 대해서 기억을 못하느냐. 대체 어떤 일이 있었던 것이냐. 네가 기억을 해야 우리가 수사를 할 수 있다'라고 하며 기억을 하라고 강하게 압박한 것은 사실이나 답변을 유도한 것은 아니었다."라는 취지로 증언하였다.

In light of the above testimony, at the time of preparation of the statement as of March 6, 2017, when the victim E made a evise or concrete statement about the present situation at the time of the instant case, the victim appears to have been unable to fully memory at the time of the instant case, and there is a situation where it is difficult to believe the victim E’s statement as it is, because it is highly probable that the victim made a statement in the police officer’s investigation called memory, and there is a high possibility that the

③ 피해자 E은 2017. 2. 12.경 경찰서에 제출한 진술서에 "피고인이 번쩍이는 작은 무언가를 살짝 보여주며 저를 찌르는 시늉을 하였고, 본능적으로 과도칼이라는 것을 느꼈다."라고 진술하였고, 2017. 3. 6. 수사기관에 피해 진술을 하면서도 흉기의 모양에 대하여 구체적인 언급을 하지 않다가 수사관이 피고인의 차량에서 발견된 가위를 보여 주자 그 때부터 "가위의 날 모양이 자신이 기억하는 흡기의 상태와 일치하고, 칼 모양이 일반적인 칼과는 달리 양날이 있고 끝은 뾰족하지만 중간은 약간 둥근 타원형으로 보였다."라는 취지로 진술하였다(수사기록 155쪽, 595쪽). 그 후 이 법정에서는 "보통과도칼 같은 경우는 날이 한 쪽에만 있는데 피고인이 소지했던 흉기는 동그란 모양의 날이 보여서 날이 특이하다고 생각했다."라고 보다 구체적으로 진술하였다.

Unlike the fact that the victim made a concrete statement on the shape of a deadly weapon since the time when the victim was discovered in the Defendant’s vehicle, and the first written statement was written as ‘satisfyed as excessive knife', it is highly likely that memory was distorted in the direction that the victim was threatened with the fact that the victim was found on the Defendant’s vehicle in an uncertain state when he was aware of the fact that the victim was found on the part of the Defendant’s vehicle.

④ At around 00:41, the Defendant met only with the victim’s physical bank card with the victim’s physical bank, set off the victim before the revised police station, and then withdrawn cash with the said card first at around 01:32.

In light of the victim E’s statement that the card was forcibly taken two copies of the card, the Defendant took two copies of the card to threaten the victim with a deadly weapon and taken one copy of the card to check the balance, and did not withdraw cash before the police station, and withdrawn cash after about one hour. However, in a case where the card was forcibly taken, the Defendant could prevent cash withdrawal through the card in a simple manner that applied for suspension of transaction by telephone to the card company. Thus, it is common that the offender who forcibly taken the card by assaulting and threatening another person would withdraw cash before the victim applied for suspension of transaction with respect to the card and release the victim.

According to this, the defendant's act constituted by the victim's statement may be deemed as an act of a person committing robbery. Rather, the defendant's statement that the breath victim, under the influence of alcohol, moved the card to another place where the victim was unable to memory the fact that the breath card had already been stored at the destination, and that the defendant's statement that the breath of alcohol was withdrawn by moving the card to another place where the victim was not aware of the loss of the card.

⑤ On December 29, 2016, the Defendant: (a) committed a larceny crime described in the criminal facts by the same veterinary method on February 3, 2017; (b) February 21, 2017; and (c) March 1, 2017; and (b) on February 8, 2017, the Defendant, who was committing a larceny by putting a taxi on the cab on the cab and committing a larceny by driving it on the cab, seems to have no special reason for committing a larceny crime again, which is identical to the previous one.

6) On the following day, the victim E made a statement that he/she thought that the face side is short of her face and has a little inside of the face, and that he/she did not clearly memory the facts that he/she was assaulted by the Defendant immediately after the case (No. 597 pages of the investigation record). However, he/she made a statement to an investigative agency that “if he/she is satisfe at the time of the case, he/she is satisfy that the Defendant had satisf at the time of the case, and even before satisfy, he/she would be satisfy if he/she is satisfy that he/she had satisfy

However, there is a possibility that the victim has been faced with a speecher in the process, and there is a possibility that there is a possibility that the victim might have been faced with a speecher during the process (the inquiry about the 112 comprehensive situation room of Seoul Provincial Police Agency, the fact inquiry about the 70th general situation room), and the victim is not memoryd at all, and the fact that the victim was faced with the money from the account, and it is thought that he was a robbery, and that the assault was caused by the assault, and that his memory was distorted ex post facto.

7) As to the volume found in his/her vehicle, the Defendant stated that he/she was placed in the Gabro string of the office as a Gabro, assisted the director of the company’s representative father, and used it to put him/her into the Gabro string of the car, and that he/she was placed in the Gabro string of the car. Such Defendant’s assertion is not completely acceptable (it was submitted a written application and a lease agreement to the effect that the AE representative director of the company working for the Defendant is the Defendant’s statement).

4. Conclusion

This part of the facts charged constitutes a case where there is no proof of a crime, and thus, innocence is pronounced in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is announced in accordance with Article 5

The presiding judge, the highest judge;

Judges of the High Instance

Judges Kim Dong-dong