(영문) 서울중앙지방법원 2019.05.16 2019노160

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(영문) 서울중앙지방법원 2019.05.16 2019노160

특수절도등

Text

All appeals filed by the prosecutor against the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. In determining the facts (defendant B), the Defendant’s act of delivering the amount of damage caused by the instant Bosing crime under Co-Defendant C’s instruction is not consistent with the nature of money exchange business in light of the nature of money or the process of receiving money, and even if such act is called money exchange, it should be deemed that the Defendant sufficiently recognized that the said money was stolen in a very exceptional and abnormal manner.

Nevertheless, the judgment of the court below which acquitted the defendant on the ground that it is difficult to conclude that the defendant was aware or could have been aware that the money received from I by C's request was stolen.

B. The sentence of unfair sentencing (defendant A and C) imposed by the court below on the Defendants (two years of imprisonment, confiscation, and confiscation: one year of suspended sentence, two years of suspended sentence in one year of imprisonment, and confiscation) is too unjustifiable and unfair.

2. Determination

A. (1) As to the assertion of mistake of facts, the additional prosecutor of the ancillary charge following the amendment of the indictment made in an appellate trial and applied for the amendment of the indictment to the name of the offense, “transport of the chief of the department in charge” in the applicable provisions of law, “Articles 364 and 362(1) of the Criminal Act” in the indictment, and “Article 364 and Article 362(3) of the Criminal Act” in addition to the ancillary charge as stated in paragraph (1) of the same Article, and the subject of the judgment was added by this court. However, the argument of mistake of facts as to the transport of stolen goods which constitute the primary charge due to the additional charge of the ancillary charge is still subject to the judgment of this court. Accordingly, the court below first examined the legitimacy of the assertion of mistake of facts, and then judged the ancillary charge added by the

참조조문

-형법 제362조 제1항

-형법 제364조

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