(영문) 수원지방법원 2017.05.29 2016노8530 | 리걸엔진

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Reasons

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(영문) 수원지방법원 2017.05.29 2016노8530

절도

Text

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. The lower court found the Defendant guilty of this part of the charges, even though the Defendant did not have committed a theft of each bicycle listed in Nos. 1 and 3 of the List of Crimes Nos. 1 and 3.

B. The sentence sentenced by the lower court against the Defendant (a punishment of KRW 3 million, confiscation) is too unreasonable.

2. Judgment on the Defendant’s assertion of mistake of facts

A. The summary of this part of the facts charged was stolen by the Defendant with each bicycle of the victims at the time and place set forth in [Attachment 1] Nos. 1 and 3 of the List of Crimes.

B. The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the following evidence.

(c)

The recognition of facts constituting an offense in a criminal trial for the trial of the party shall be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. As such, in a case where the prosecutor’s proof does not reach the degree to have the aforementioned conviction, the determination should be made in the interests of the defendant even though there are doubtful suspicions, such as inconsistency with the defendant’s assertion or defense or uncomfortable amnesty, etc. (see, e.g., Supreme Court Decision 2012Do231, Jun. 28, 2012). They return to the instant case, and reconsumpt back the statement as to whether the defendant continues to recognize this part of the facts charged from the police investigation to the trial of the party. There is no doubt that the content or attitude of the defendant’s statement is not attributable to the defendant’s attitude.

However, the remaining evidence submitted by the prosecutor is merely about the fact that each bicycle was dead as stated in this part of the facts charged, and there is no evidence to support the defendant that the defendant stolen the above bicycle, and there is no other evidence to support it.

Ultimately, this part of the facts charged is without proof of the facts charged.

참조판례

-대법원 2012. 6. 28. 선고 2012도231 판결

유사 판례

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