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Reasons
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(영문) 서울고등법원 2013.11.28 2013노2841
특수강도등
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All the judgment below is reversed.

A defendant shall be punished by imprisonment for three years.

The seized SKY cell phone (No. 1) shall be the mobile phone.

Reasons

1. Summary of grounds for appeal;

A. In light of the fact-finding assertion (Embezzlements), the Defendant and the manager’s working location, the form of direction, etc., it is reasonable to view that the Defendant actually controlled cash in the safe. Therefore, the lower court acquitted the Defendant of this error of mistake.

B. In light of the Defendant’s power, method of crime, and amount of damage, etc., the lower court’s imprisonment (three years of imprisonment) is deemed unreasonable.

2. Determination

(a) Stolen goods that have been seized ex officio and whose reasons for return to the victim are apparent, shall be sentenced to return to the victim by judgment;

(Article 33(1) of the Criminal Procedure Act. According to the evidence duly adopted and examined by the court below, the seized SKY cell phone (Evidence No. 1), six dives (Evidence No. 2), three dives (Evidence No. 3), one dives (Evidence No. 4), one dives (Evidence No. 5), one dives (Evidence No. 6), one dives (Evidence No. 7), one dives (Evidence No. 8), and one dives (Evidence No. 8) all were stolen by the defendant, and it is clear that the reason why the defendant should return it to the victim. Thus, the court below omitted the sentence that the defendant return it to the victim pursuant to Article 33(1) of the Criminal Procedure Act.

Therefore, the judgment of the court below is erroneous as above, and it cannot be maintained.

B. The judgment of the court below on the prosecutor's assertion of mistake of facts is a ground for ex officio reversal, but the prosecutor's assertion of mistake is still a subject of judgment.

(1) On November 28, 2012, the Defendant, at around 03:10 on November 28, 2012, embezzled the cash amount of KRW 4.3 million of the victim’s cash stored in the soft, while taking charge of the receipt of cash at “AS hotel” operated by Gyeyang-gu Incheon Metropolitan City AS hotel, Gyeyang-gu, Incheon Metropolitan City.

(B) The lower court determined based on the circumstances indicated in its reasoning.

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