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(영문) 서울고등법원 2019.11.27 2019노1254
특수강도등
Text

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. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles (the special robbery and attempted special robbery) did not attract the police officers of the Philippines to commit a crime of special robbery as stated in the facts constituting an offense in the judgment of the court below, and do not forcibly take money by assault and intimidation to the extent that it is impossible to suppress or resist the resistance of the victims. Thus, the crime of special robbery or attempted special robbery is not established.

Nevertheless, the court below erred by misunderstanding the facts and misunderstanding the legal principles that found the guilty of each special robbery and attempted special robbery among the facts charged of this case.

B. The lower court’s imprisonment (five years of imprisonment) against the Defendant is too unreasonable.

2. In the judgment of the court below ex officio (revision of indictment) the prosecutor found the defendant guilty of each special robbery and attempted special robbery among the facts charged in the instant case, he/she shall maintain the facts as the primary facts charged, and shall apply for the amendment of indictment with the content that the criminal facts of No. 2018Da1067 and No. 201178 are added to the criminal facts of No. 2010, Dec. 11, 201, and the applicable provisions of Articles 350(1), 352, and 30 of the Criminal Act are added to the criminal facts of No. 2010, Oct. 1067.

Therefore, since the subject of this Court's trial was changed (the additional charges are recognized as guilty as follows), the judgment of the court below cannot be maintained any more.

However, despite the existence of the above reasons for ex officio reversal, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles against the judgment of the court is still subject to the judgment of this court.

3. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. A. Around February 23, 2015, the summary of the primary charge is “2018, 1067, 2015,” the Defendant is online at the place of the Philippines around October 26, 2014.

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