(영문) 서울중앙지방법원 2017.11.24. 선고 2017고합989 판결

On May 16, 2002, the Defendant was sentenced to imprisonment with prison labor for one year and six months with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the Busan District Court on May 16, 2002, and one year and six months with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the Busan District Court on October 27, 2003, and two years with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the Busan District Court on July 1, 2008, and four years with prison labor for a violation of the Seoul High Court on April 19, 2012, and completed the execution of the final sentence on November 9, 2015.

【Criminal Facts】

1. Violation of the Aggravated Punishment Act;

The Defendant, who was sentenced twice or more to the crime of habitually violating the Act on the Aggravated Punishment, etc. of Specific Crimes, was habitually punished within three years after the execution of the sentence is completed, and was committed larceny, night entry theft, and attempted to commit larceny, and larceny, as described in the attached Table, on nine occasions between around September 10, 2017, by taking away KRW 80,000 in cash from the hand room located in the house by putting the window from the door to the house of Yeongdeungpo-gu Seoul Metropolitan Government and the victim D on August 23, 2017 at the house of the victim D.

2. Damage to property;

A. On August 23, 2017, at around 13:00, the Defendant destroyed the crime prevention windows where the market price cannot be ascertained because the Defendant took away from the house located in Yeongdeungpo-gu Seoul Metropolitan Government C and 103 by hand and walked by walking the string.

B. On August 29, 2017, around 12:00, the Defendant destroyed the crime prevention windows where the market price cannot be known because the Defendant took away from the F’s house located in the Gwanak-gu Seoul Special Metropolitan City E and 102 as his hand and walked by walking.

C. On August 29, 2017, at around 12:00, the Defendant destroyed the crime prevention windows where the market price cannot be determined by taking away from the G house located in Gwanak-gu in Seoul Special Metropolitan City E and 101 by hand and walking by hand.

D. On September 6, 2017, at around 13:00, the Defendant destroyed the crime prevention windows where the market price cannot be known because the Defendant took the crime prevention window by hand at the I’s house located in Geumcheon-gu Seoul H and 103.

E. On September 8, 2017, around 18:00, the Defendant destroyed the crime prevention windows where the market price cannot be known because the Defendant took away from the house located in the Gwanak-gu Seoul Special Metropolitan City J and 103 as his hand and walked by walking.

Summary of Evidence

1. Partial statement of the defendant;

1. Each statement of G, F, K, D, L, I, M, N, and0

1. Written appraisal, results of appraisal, fingerprinting at the scene of a crime, each request for appraisal results, each report on request for appraisal, each gene appraisal report, leaptable appraisal report, notification of the results of appraisal, arctal appraisal and fingerprinting response;

1. Results of checking the victim's e-mail output, each field photograph, each identification photograph, CCTV photograph, cell image on the presumption of a crime, CCTV photograph, CCTV photograph, access CCTV image on the escape, capture of PPC CCTV, photograph of registration information, Q methods information, recent case information of Q Q, detailed inquiry into the victim's e-mail output, each site photograph, photograph of the suspect, on-site verification photograph, CCTV photograph, on-site identification report, photograph of each site identification report, each suspect's CCTV photograph, moving photograph, CCTV photograph, each evidence evidence, each thie case's fingerprint, and DNA personal information of each detained suspect;

1. Investigation report (the selection of a suspect, CCTV investigation, CCTV investigation related to tracking the access road of a suspect, CCTV investigation related to the suspect, on-site inspection, on-site inspection, CCTV investigation, on-site investigation, on-site investigation, on-site investigation, on-site investigation, investigation into an excursion ship relevant to specific damaged goods by the victim, victim and identification, on-site investigation, investigation into an on-site investigation, analysis of CCTV around the scene, specific circumstances surrounding CCTV, tracking of moving routes before and after the suspect committed the crime, response to each erosion, field-centered investigation, investigation, and notification

1. Report on internal investigation (the result of a victim, a site of occurrence, internal investigation at each site, CCTV verification, CCTV verification by the Housing Management Corporation, internal investigation by the suspected person's moving route, internal investigation by the suspected person, and satisfaction leapment);

1. Reports on each occurrence of a theft;

1. Previous records of judgment: Criminal history records, inquiry reports, investigation reports (verification of period of repeated crime), personal confinement status, judgment (the first and second trials), investigation reports (Attachment to judgment), and each judgment;

1. Habituality of judgment: A theftproof wall is recognized in light of the records of each crime, the frequency of crimes, the frequency of crimes, and the repeated crimes of the same kind in the judgment;

Application of Statutes

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

Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 329, 330, and 342 of the Criminal Act (including habitual larceny and comprehensive theft), Article 366 of each Criminal Act (the point of causing property damage and the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the largest penalty, shall be aggravated within the proviso of Article 42

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

① On August 29, 2017, when the Defendant was at the victim F’s house, the Defendant attached the crime prevention window, but did not enter the house, and thus, did not cut any object (attached Table 2).

(2) On August 29, 2017, it shall not be included in the theft from the victim G house (attached Table 3).

③ On August 31, 2017, the amount of cash that the Defendant stolen at the victim L’s office is not “90,000 won” but “7,00 won” (Attached Table 4).

④ On September 6, 2017, the amount of cash that the Defendant stolen at the victim I’s home is not “10,000 won” but “50,000 won (attached Table 5).

⑤ The amount of cash that the Defendant stolen at the victim K’s residence on September 8, 2017 is not “50,000 won” but “70,000 won,” and the gift certificates are not included in the stolen goods (attached Form 6, the daily list of crimes).

6. The number of cash amount that the defendant stolen at a restaurant of the victim M on September 10, 2017 is not "80,000 won" but "20,000 won", and the sale wastes out of the stolen shall not be included (attached Form No. 8).

2. Determination

① The above argument is recognized as follows: “A health team, victim F, opened a window on the house on the day of the instant case, and the crime prevention window was laid down. On the book, the position of the above monitor and the spacker was connected and confirmed that the diesel visibility was destroyed by the monitoring team.” (Investigation record 1) 199 pages), and the Defendant also stated as follows: “The Defendant had a hand-on and the monitor organized the position of the monitor by inserting the hand through the window (No. 518 pages).” (No. 518 pages) In light of the fact that the Defendant’s hand-on appears to have sufficiently contacted on the back of the monitor, which is the location where the victim was placed in sight, the damaged product, the Defendant’s hand-on could not be accepted.

② In light of the following facts: (a) the victim G made the statement that “no longer 90,000 won of the fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral flusium

③ In light of the following facts: (a) the victim L made the statement to the public health room; (b) the victim L made the statement to the effect that the victim L does not have one Vietnam for medical treatment equivalent to KRW 100,000,000 in cash, KRW 450,000 in cash, KRW 100,000 in cash on the office’s books; and (c) the market price in the office’s storage no longer exceeds KRW 100,000 in the office’s book (the number of 217,347 pages), the above argument is rejected.

In light of the following facts: (a) the victim made a statement to the effect that “No men’s wall exists that contains a health room; (b) 500 won and 100,000 won per annum; and (c) the verification wall containing cash and foreign registration certificates, etc. (number of 406 pages); (c) the victim later made a statement to the effect that “the victim discovered that the wall was stolen by unre-verificationing the wall as a result of re-verification of the damage; (d) the victim was stolen only from the container contained therein (number of 273 pages); and (e) the victim made a statement to the effect that “the victim was stolen from the container contained therein.”

⑤ The above assertion was stolen by the victim K, “The amount of KRW 200,000 in cash, KRW 100,000 in a new World gift certificate, and KRW 300,000 in a face value.” The victim K stated that “The amount of KRW 500 in a face to be gathered for several years ( several pages),” and that the CCTV taken on the day of the instant case is in a face where the Defendant’s cash was taken (number of pages 262). In light of the above, the above argument is rejected.

6) In light of the above facts, the victim M& made a statement that “the victim’s 90,000 won, KRW 600,000 won, KRW 150,000 won, KRW 80,000 won, KRW 580,000 won, KRW 50,000 won, and KRW 880,000,000,000 won, which were kept in a bank, was stolen by five hundred and twenty thousand won, and KRW 18,50,000,000, KRW 652,000,000.” ( several pages 427,432 pages), the above argument is rejected.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for three years - fifty years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Basic crime - Violation of the Aggravated Punishment, etc. of Specific Crimes Act;

[Determination of Punishment] Types 2 of the thief Act on the Aggravated Punishment of Specific Crimes (Habitual thief)

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment for 2 years, 4 years

(b) Concurrent Crimes 1, 2 - Each damage to property.

[Determination of types] General Criteria for Damage Offenses. Type 1 (Destruction of Property, etc.)

【Special Convicted Person】

[Recommendation and Recommendation Scope] Basic Field, Imprisonment 4 months - October

(c) Application of standards for handling multiple crimes: 2 years of imprisonment - August 10, 4 (4 years of imprisonment with prison labor which is the maximum of the scope of punishment for basic crimes and 1/2 months of imprisonment with prison labor which is the maximum of the scope of punishment for one concurrent crime and 1/3 of March 10 of the maximum of punishment for two concurrent crimes);

(d) modified range of recommendations: Three years of imprisonment - August 10, 400 (the lower limit of the applicable sentencing in law is higher than the lower limit of the recommended sentencing, and thus, the lower limit of the applicable sentencing in law); and

3. Determination of sentence: Four years of imprisonment; and

The crime of this case was committed by the Defendant, who had been habitually sentenced two or more times to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by habitually larceny, again committed the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes, which constitutes a repeated crime, on nine occasions during the period in which the said crime took place against the house in which the crime of larceny was installed, or the restaurant, office, etc. where the crime of this case is brutly brued. The damage was not completely recovered even if the amount of damage reaches a million won. In light of this, it is necessary to punish the Defendant strictly corresponding to

However, considering the fact that the defendant's mistake is divided into one's own mistake, the circumstances favorable to the defendant are considered, and the defendant's age, character, character, environment, family relationship, motive and circumstance of the crime in this case, and the circumstances after the crime are considered, the punishment as ordered shall be determined by comprehensively considering various sentencing conditions stipulated in Article 51 of the Criminal Act.