(영문) 대구지방법원 2014.11.28 2014노3287 | 리걸엔진

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(영문) 대구지방법원 2014.11.28 2014노3287

특정범죄가중처벌등에관한법률위반(절도)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

Reasons

1. The gist of the grounds for appeal is that the sentence imposed by the court below on the defendant (two years and six months of imprisonment, and the return of the victim of seized articles) is too unreasonable.

2. Ex officio determination

A. Article 333(1) of the Criminal Procedure Act provides that "the reason for return to the victim is clear as the stolen property seized shall be returned to the victim by judgment." Here, "when the reason for return is apparent" means the case where the victim under private law has the right to request the delivery of the seized stolen property, and in fact, if there is doubt about the right to request the delivery of the seized stolen property, it cannot be said that the reason for return is clear.

(Supreme Court Order 84Mo38 dated July 16, 1984). B.

However, according to the records of this case, among the articles seized by the investigative agency on the ground that they constitute stolen goods acquired by the defendant through the crime of this case, it is difficult to clearly specify which victim should return each of the above seized articles to the victim because it is unclear whether each of the above articles seized was acquired through any criminal act during the crime of this case. The defendant's part of the seized articles (Evidence No. 9, 10, 12, 19) is the defendant's female-friendly body or his own claim that the seized articles (Evidence No. 9, 10, 12, 19) is owned by the defendant, and there is no other evidence to reject it. Thus, it is difficult to conclude that the above articles seized fall under a case where it is evident that the defendant has the right to request delivery to the victim.

Nevertheless, the judgment of the court below which sentenced the return judgment on the ground that the case constitutes a case where it is evident that the victim's name was not the victim's right to request the delivery of evidence 2, 4, 9, and 24, which was confiscated, constitutes an error of law by misunderstanding legal principles

3. Conclusion.

참조조문

-형사소송법 제333조 제1항

참조판례

-대법원 1984. 7. 16. 자 84모38 결정

유사 판례

-대법원 1984. 7. 16. 자 84모38 결정

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