Defendant 1 and one other

Kim Jong-soo

Attorneys Jeong-nam et al.

Defendant 1 shall be punished by imprisonment with prison labor for four years and by imprisonment for four months.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Defendant 1 was sentenced to a suspended sentence of two years in the Seoul Central District Court on October 26, 2010 due to larceny and a crime of violating the Food Sanitation Act at the Seoul Central District Court on August 26, 201, and the said judgment became final and conclusive on November 3, 2010 and is currently in the grace period.

Defendant 1 (one-time △△△△△) operated a mutual guidance point with Defendant 1 at the New-ro 5-dong 5-dong 5-dong 1 in Seoul, Jung-gu, Seoul, and Defendant 2 (one-time △△△△△△△△) had been aware of Defendant 1 from around 2010, and used money for the same number of days as Defendant 1 became aware of. Defendant 1 was urged to pay approximately KRW 25 million for the number of days of bonds, and Defendant 1 was under demand for payment and was also in a situation in which the brupt and the fluence were pushed. Nonindicted 1 (Death around January 4, 201) was known to Defendant 1 from around 202 to 207, while drinking the same kind of drinking with Defendant 1 as a customer at the above main points operated by Defendant 1 from around 207.

On December 31, 2010, Defendant 1 called “I am or going off, and play in depth.” On December 31, 2010, Defendant 1 called “I am or going off,” and Nonindicted 1 paid KRW 100,000 as the drinking value, when I am under the influence of alcohol by talking with the employees of the salary-class factory, “the time off,” which was the time when I am under the influence of alcohol, with the employees of the salary-class factory, “the time off which the time off which I am close,” which was operated by I am under the influence of alcohol, on December 31, 2010.

After that, Defendant 1 had to find money from Nonindicted 1 to the above string factory where Nonindicted 1 was lodging, and Nonindicted 1 had his handck card (OK Pomeck, card number omitted) at the accommodation of the above factory. Nonindicted 1 collected money from Defendant 1 and Defendant 1 to the chip branch of a corporate bank located in the Jung-gu Seoul Metropolitan Government, Jung-gu, Seoul, on January 1, 2011, at around 01:52, Defendant 1 and Defendant 1 collected money from Defendant 1 as well as Defendant 1 to the chip branch of the corporate bank located in the Yellow-gu, Jung-gu, Seoul. However, under the influence of alcohol, Defendant 1 was faced with two parts of the road and the stairs of the bank in front of the left eye, and in this circumstance, Defendant 1 was satisfed with the axis of Defendant 1, and withdrawn KRW 330,000 from the cash withdrawal.

Defendant 1 returned to Nonindicted 1 again with the above main points, and came to know that the balance remaining in the account of Nonindicted 1 reaches approximately KRW 20 million. Defendant 1 received approximately KRW 330,000 from Nonindicted 1 to January 1, 201, and had Nonindicted 1 continue to drink alcohol, beer, and beer. Nonindicted 1 dice 1 dice again dice at around 07:00 after diving, and she dice dice dice 1’s clothes, which were kept in the state of drinking due to continuous drinking. Defendant 1, as seen above, she dice 1’s clothes in the state of drinking, and continued to drink Nonindicted 1’s clothes in the state of drinking, and continued to drink Nonindicted 1’s clothes in the second place of drinking.

On January 1, 201, at around 02:46, Defendant 1 attempted to deduct the above Suop Card from other Nonindicted 1’s clothes in which Nonindicted 1 was under influence of alcohol, and to withdraw KRW 1 million in cash from the same branch of the above company’s sexual branch. However, Defendant 1 was refused to withdraw in cash on the ground of Nonindicted 1’s change of the secret number prior to the said change of Nonindicted 1.

1. Defendant 1’s thief;

(a) Withdrawal of KRW 1 million in cash from January 1, 201, around 12:05;

At around 10:00 on January 1, 201, Defendant 1 asked Defendant 2 several times to “I am good. I am good.” Defendant 2 asked Defendant 1 to “I am good,” and found Defendant 2 as the above main points after receiving Defendant 1’s telephone. Defendant 1 displayed Nonindicted 1’s statement of cash withdrawal to Defendant 2, who was the above main points, and did not inform Nonindicted 1 of the identification number, without giving a large amount of money. The same does not apply to “I am good. I am the password. I am we am we see. I am we am. I am we am. I am we am we am with the identification number already known.” Accordingly, Defendant 2 requested Nonindicted 1 to “I am good. I do not have to calculate the drinking value” and notified Defendant 1 of the identification number.

Accordingly, Defendant 1, from Defendant 2, re-verificationd the password of the above Sucom Card to Nonindicted Party 1. On January 1, 201, at around 02:46 of the same day, Defendant 1, who had been arbitrarily deducted from Nonindicted Party 1 on the table, was laid off on the table, but was not properly managed by the victim. Defendant 1, who used the above check card to be a victim of the newly established cash payment machine in Jung-gu, Seoul, and then came to be a community credit cooperative located in the five new-gu, Seoul, and then cut off the check card after entering the password and then withdrawing one million won in cash.

(b) withdrawal of KRW 2 million in cash in around January 2, 2011;

At around 10:17 on January 2, 201, Defendant 1 cited the above physical card in the management status as the above paragraph (a) and collected the above physical card at the victim new bank branch in Jung-gu, Seoul and the new bank branch in Jung-gu, Seoul, and then withdrawn the above physical card from KRW 2 million in cash.

(c) withdrawal of KRW 1 million in cash from January 2, 2011: around 18:46:

On January 2, 2011, at around 18:46, Defendant 1 cited the above physical card which was in the management status under the above paragraph (a) and collected the above physical card from the victim community credit cooperatives in the above new 5 units, and then withdrawn one million won in cash after entering the identification number as referred to in the above paragraph (a).

(d) withdrawal of KRW 1 million in cash from January 3, 201, around 11:56:

On January 3, 2011, at around 11:56, Defendant 1 cited the above physical card in the management status under the above paragraph (a) and collected the above physical card from the victim community credit cooperatives in the above new 5 units, and then withdrawn one million won in cash after entering the identification number as referred to in the above paragraph (a).

2. Defendants’ joint larceny crime

At around 17:14 on January 1, 201, Defendant 1 conspired with the Defendants, Defendant 1, who was deducted from Defendant 2 as above 1-A at the above main point, opened the check and withdrawn the check at KRW 1 million. Defendant 2 consented to the check and collected the check from Defendant 1 as a community credit cooperative in the above new 5th unit, and then collected the check in cash, and then withdrawn KRW 1 million in cash.

3. Defendant 1’s abandonment of crime;

Defendant 1 is liable to take necessary measures to prevent harm to life or body of the victim Nonindicted 1 (Nam and 49) due to the sale of alcoholic beverages, as an entrepreneur of the main place of business, who is a public entertainment business, to operate the main place of business. In addition, Defendant 1 had a duty to take measures to protect the victim’s life or body by making the victim move the victim to the main place of business or to the nearby main place of business so that it does not cause harm to life or body. In such cases, Defendant 1 had a duty to take necessary measures to protect the victim’s body by making the victim move to the main place of business or to contact with the police or by taking other necessary measures to ensure that the victim’s life or body does not occur, regardless of his own will from January 1, 2011.

Nevertheless, at around 23:00 on December 31, 201, Defendant 1, in violation of such legal or contractual duties, left the victim who was first placed at the main point of the victim, and was reported missing on January 3, 201 at around 19:20 on January 3, 201, left the victim at the said main point of the police station for about 68 consecutive hours from the said main point of the police station where the police officer discovered the victim at the said main point of the police station, reported the 119, and immediately sent the victim to the hospital. Defendant 1 left the body of the victim who was missing from the body of the police station to the end of the next main point of the police station for about 68 hours.

As a result, around 19:20 on January 3, 201, the victim died from a low temperature certificate and a scarcity in the patient room at around 23:40 on January 4, 201, while receiving treatment after being transmitted to the National Medical Center.

4. Defendant 1’s crime of violating the Food Sanitation Act

From November 4, 2010 to January 4, 2011, Defendant 1 operated the said “○○” points in New-ro, Jung-gu, Seoul (Land Number omitted) and operated a general restaurant business by installing two consignments, 12 chairs, and cooking utensils in the said place without reporting to the head of the competent authority, and cooking and selling them to many and unspecified customers.

1. Defendants’ partial statements 4) Legal statements

1. Defendant 1 and 2’s statement each of them at court;

1. Each prosecutor's interrogation protocol against the Defendants

1. Each police statement on Nonindicted 2, 3, 4, and 5

1. Written opinions, investigation reports (in charge), investigation reports (including autopsys of victims and medical sets), investigation reports (including investigation reports on personal benefits of victims who are counterpart to the Health Insurance Corporation), investigation reports (the details of personal benefits of victims and up-to-date data), investigation reports (record of variable cases), investigation reports (verification of autopsy reports) and replys to requests for confirmation of results of autopsy and appraisal results;

1. A person who has made an investigation report, a report on the occurrence of a disappearance, such as a missing child, a report on investigation, a photo, etc. of this case, a copy, etc. of passbook 1, a photograph, etc. inside and outside the scene of the crime, a photograph, etc. of the suspect taken into CCTV for cash withdrawal, the form of the victim's transaction, the details of confirmation of the subscriber's personal information, a copy of the account book of the suspect, the number of days of the suspect, the investigation report (in the case of text messages), the investigation report (in the case of the suspect's types of business), the investigation report (in the case of telephone), the records of the suspect's telephone, the actual investigation report, the investigation report (in the case of the CCTV reading investigation), the CCTV video recording data for crime prevention, the investigation report (Defendant 1's previous and summary order, etc.), the records of control, the scene of investigation report, the field photo of the suspect's business, and the statement of the suspect's cash withdrawal to the non-indicted 16.

1. Previous convictions in judgment: Criminal records and investigation reports (defendants 1 and summary orders, etc.);

1. Defendant 1

A. Article 2 of the Criminal Procedure Act and the choice of punishment

(1) Each point of ruling No. 1: Article 329 of the Criminal Code (Options of Imprisonment)

Article 329 and Article 30 (Selection of Imprisonment) of the Criminal Act

Article 275(1) latter part of the Criminal Act and Article 271(1)(a) of the Criminal Act

Applicant 4: Article 97 subparagraph 1 of the Food Sanitation Act and Article 37 (4) of the Food Sanitation Act.

(b) Aggravation for concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment for Crimes of Death or Injury Aggravated Punishment Aggravated Punishment Aggravated Punishment Aggravated Punishment Aggravated Punishment Aggravated Punishment Aggravated Punishment)

2. Defendant 2

A. Article 2 of the Criminal Procedure Act and the choice of punishment

Articles 329 and 30 (Selection of Imprisonment)

(b) Suspension of execution;

Article 62(1) of the Criminal Act

As to Defendant 1’s crime of abandonment resulting from death, Defendant 1’s defense counsel is arguing the possibility of predictability as to the result of the victim’s death, to the effect that Defendant 1 could not have anticipated that the victim would have died as it was, due to drinking, at the time of the instant main point and his behavior by Nonindicted Party 1.

The following circumstances revealed by the evidence, i.e., ① appears to have been sufficiently aware in the process of leaving the victim’s clothes twice to the extent that the victim could have seen her body function or physiological action to the extent that she had already been under the influence of her clothes, and ② the victim was off his body and her clothes without being covered by her obsation or fence, and these circumstances appear to have been able to have been observed from time to time. ③ From December 31, 2010 to January 3, 2011, Defendant 1 appears to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have.

1. Defendant 1

Although Defendant 1 had had been subject to criminal punishment several times by illegal means while operating the main point before, Defendant 1 had been subject to criminal punishment by committing the instant crime, as seen in the instant crime, Defendant 1 had the victim lose the mind due to excessive drinking, stolen money and valuables in the process, and left the victim under the influence of alcohol, resulting in a serious consequence that the victim would eventually lead to a minor life. Nevertheless, Defendant 1 still took responsibility for others with unreasonable justification, and does not seem to have the light of the strong resistance against his mistake. Accordingly, it is inevitable for Defendant 1 to punish Defendant 1 with severe penalty corresponding to his criminal liability.

In addition, in consideration of all the sentencing factors shown in the pleadings of this case, such as the age, character and conduct, environment, motive and means of the crime, result, etc., Defendant 1 shall be punished against Defendant 1.

2. Defendant 2

Defendant 2 took part in certain larceny among the crimes of this case, and is minor and deemed to have acted upon Defendant 1’s request. In addition, Defendant 2’s age, character and conduct, environment, motive and means of the crime, consequence, etc., taking into account all of the sentencing factors indicated in the arguments of this case, such as the circumstances after the crime, are to determine punishment against Defendant 2.

1. Quasi-Fraud against the Defendants

A. Summary of the primary facts charged

At around 10:00 on January 1, 201, Defendant 1: (a) called Defendant 2 by phone several times to Defendant 2; and (b) Defendant 2, upon Defendant 1’s contact, sent Defendant 1 to Defendant 2 a statement of cash withdrawal of the victim Nonindicted 1, and Defendant 1 does not indicate the victim Nonindicted 1’s cash withdrawal; and (c) changed the number of password prior to being sent. The same shall be changed. Defendant 1’s horses to “I am asked once” and Defendant 2 requested Defendant 1’s horses to “I am not obliged to calculate the drinking value” and notified Defendant 1 of the password from the victim in a mixed state of alcohol.

Defendant 1, after re-verification of the passwords of the victim’s account by Defendant 2, received a physical card from the victim, and directly entered the passwords at around 12:05 on January 1, 201, with the victim’s main points, Defendant 1 withdrawn KRW 1,00,000 from the cash payment period of the new 5-dong community credit cooperatives, Jung-gu, Seoul, Seoul, and Defendant 2, who was waiting at the above main points, received KRW 1,00,000 from Defendant 1 under the pretext of the fee.

After that, the Defendants set up a soup, making soup and making soup, while setting up the victims, and Defendant 1 received a physical card from the victim by the above method, and sought one million won from Defendant 2. Defendant 2 entered the above password at around 17:14, 201, and withdrawn KRW 1 million from the cash payment period of the above community credit cooperative, and was 1.5 million from Defendant 1.

As a result, the Defendants conspired in collusion and acquired a total of 2 million won under the influence of alcohol by taking advantage of the state of the victim suffering from mental or physical disorder.

B. Determination

The quasi-Fraud crime as stipulated in Article 348 of the Criminal Act is established by the acquisition of property or pecuniary gains through the cruel act using the state of human mental or physical disorder, etc. by the victim’s delivery of property or other disposal of property.

Therefore, in light of whether the victim committed an act of delivering the above check card to Defendant 1 on two occasions on January 1, 2011, Defendant 1’s statement in an investigative agency and this court, which seems consistent with this, is difficult to believe in light of the excessive drinking volume of the victim at the time and the situation where the victim was unable to properly satisfy, and there is no other evidence to acknowledge it.

However, as seen earlier, it is recognized that Defendant 1 had been able to take over and neglected the above fisheries cooperatives card, which Defendant 1 had been on the table of the table that the victim her drinking on two occasions on January 1, 2011.

Therefore, insofar as there is no prosecutor’s proof as to the existence of a victim’s act of disposal, the crime of quasi-Fraud is not established. Ultimately, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the Defendants should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the Defendants guilty of larceny, it does not separately decide on

2. The point of robbery against Defendant 1

A. Summary of the primary facts charged

Defendant 1 had the victim non-indicted 1’s physical card identification so that it was impossible to resist the victim by making the victim drink his/her alcohol, and took the balance remaining in the victim’s account on January 1, 2011. On January 1, 201, Defendant 1 had had the victim talked with two-way disease, five-way disease, beer disease, and ten-way disease, and continued to resist with the victim who was suffering from mental or physical disorder as above, making it impossible to resist the victim. After having the victim’s physical check card, around 10:17, Defendant 1 continued to withdraw KRW 200,000 from the cash payment of the new bank in Jungdong-gu Seoul, Seoul, and continuously withdrawn KRW 10,000 from the new 15:0 on January 16, 201, and 10:30,000,0000 from the new 15:0 on May 16, 2015.

As such, Defendant 1, upon receiving a report of the disappearance of the victim from the police officer, found the victim who was out of the body temperature in the state of her departure from the bar without covering the t bargaining clothes or the strings, and reported 119 and continued to drink excessive alcohol to the victim during about 68 hours ( around 23:00 on December 31, 201, around 19:00 on January 3, 201) until the victim was sent back to the hospital (including approximately 5:5:00, around 10:30, around 200, around 201). The police officer, upon receiving the report of the disappearance of the victim, was unable to resist the victim’s right to resist at the bar of the above main station, forced the victim to drink more than 4 million won over three days, and did not lose the mental influence on the day when he left the bar.

Defendant 1 caused the death of a victim who was sent to the National Medical Center on January 3, 2011 and was under medical treatment at around 19:00 on January 4, 2011 due to excessive drinking, etc. at the above hospital’s clinic, Defendant 1 caused the death of the victim due to a low temperature certificate and a large stillbirth from the above hospital’s clinic.

B. Determination

In the crime of robbery, the degree of assault and intimidation must be to the extent that social norms objectively suppresss the other party's resistance or makes it impossible to resist the other party (see, e.g., Supreme Court Decision 2001Do359, Mar. 23, 2001). In addition, in a case where a person takes away the property of a person who is in a mixed state by allowing another person to take weak or exempted drinking, or by deceiving the person's drinking exceeding the amount of voluntary drinking, the means may constitute assault to the extent that it makes it impossible to resist the other party's resistance (see Supreme Court Decision 79Do1735, Sept. 25, 1979).

However, the assault must be an unlawful attack on the body of a person or an unlawful tangible force against the victim. As such, even if the other party’s intent is to lose his mind by putting his money or goods into a drunken state, even if the other party who respondeded to such an intent has lost his mind by exceeding the amount of ordinary drinking by making the other party’s continuous drinking, it cannot be deemed as an assault in the crime of robbery, as an exercise of an unlawful tangible force that makes the other party unable to resist by force, unless the other party forced the other party to do so by force.

In this case, the evidence submitted by the prosecutor alone is insufficient to recognize that Defendant 1 had the victim take a weak or exempted drinking while providing alcohol to the victim, or the victim took a drinking exceeding the drinking volume in a non-voluntary manner by deceiving the kind of alcohol.

Thus, insofar as it cannot be recognized that there was an assault required in the crime of robbery in the course of drinking alcohol by the victim, the liability for the crime of robbery resulting in death on such premise may not be taken against Defendant 1.

Ultimately, since this part of the primary facts charged also constitutes a case where there is no proof of a crime, Defendant 1 should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as Defendant 1 is found guilty of larceny and abandonment resulting in death, which is the ancillary facts charged, the judgment of innocence is not rendered separately

Judges Lee Jae-won (Presiding Judge)

Note 1) Investigation Report dated 3, 201 (Evidence No. 92-1 of the Evidence List)

Note 2) The indictment on the ancillary facts stated “12:03” but appears to be a clerical error.

(3) Article 19 (Duties of Business Operators) (1) of the Framework Act on Consumers shall take necessary measures to prevent any harm to consumers to their lives, bodies, or property due to goods, etc.

Note 4) Of Defendant 1’s statement, it is difficult to believe the remainder except the facts confirmed through Defendant 2, such as ① the amount of the victim’s drinking, ② the details of the withdrawal of deposits made in the name of Nonindicted Party 1, and the telephone number with Nonindicted Party 1 through Defendant 2, etc., and ③ Nonindicted Party 1’s notification of the password of the Suhyup Card, etc., in light of the facts acknowledged by the above evidence.

5) The Defendants were examined as witnesses on the other party’s crime.

Note 6) Investigation Report (Cropical Record 248 pages)

Note 7) Although it is the freedom of a person who does not drink, and drinking alcohol is also the choice of a person who drinks. However, even so, in the instant case, the victim does not seem to have continued to drink without Defendant 1’s involvement for 3 days without drinking such abnormal amount of alcohol.

Note 8) 1-A and 2 of the judgment of the court (Provided, That the defendant 2 is limited to larceny under Paragraph 2 of the judgment of the court below)

9) The summary of the summary of the decision: A.I.D. 4 A.I.D. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al. al.

Note 10) The crime of larceny or abandonment of each of the paragraphs (b), (c), and (d) of section 1-2 of the holding