Whether the penal provisions on attempted robbery apply to quasi-Robbery crimes (affirmative)

Quasi-Robbery or quasi-special robbery by a larceny attempted to commit robbery falls under the same pattern of crime as attempted general robbery or general special robbery in that it does not achieve the purpose of taking property, and the punishment for quasi-Robbery is in accordance with the examples of simple robbery under Article 333 and special robbery under Article 334 of the Criminal Act. Since each crime is listed in the penal provisions for attempted robbery under Article 342 of the Criminal Act, the penal provisions for attempted robbery shall also apply in accordance with the same example.

Articles 335, 333, 334, and 342 of the Criminal Act

Supreme Court Decision 65Do1353 Decided October 23, 1969 (No. 17 ③ 62) (this purport)

Defendant

Defendant

Chuncheon Branch Court Decision 90Na145 delivered on September 19, 1991

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

75 days of detention before the sentence of the original judgment shall be included in the above sentence.

The gist of the first ground for appeal by the defense counsel is not the criminal intent of theft at the time of the instant case, but the defendant had the intention of forcibly taking as to the instant act, and thus, the court below, despite the fact that it should be based on an attempted special robbery, has taken the charge of the Defendant’s act of this case, and thus, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

Meanwhile, the gist of the Defendant’s ground of appeal No. 1 is as follows: (a) the Defendant knife the knife at the time of the instant case, but did not threaten the victim; (b) thus, the Defendant merely committed an attempted larceny; (c) despite that the Defendant did not have committed an attempted larceny, the lower court accepted the charge of quasi-Robbery and found the Defendant guilty; and (d) the lower court erred by misapprehending the facts,

Furthermore, the gist of each of the second grounds for appeal by the Defendant and his defense counsel is as follows: even though the Defendant had been in a state of mental disorder by rough and disorderly means at the time of committing the instant crime, the lower court punished the Defendant on the ground that it did not so; the lower court erred by misapprehending the facts about mental disorder or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of

The main point of each third point is that the amount of punishment imposed by the court below is too unreasonable because the amount of punishment imposed by the defendant is too large.

Therefore, in full view of the evidence duly admitted by the court below as to the first ground for appeal by the defendant and his defense counsel, the defendant's possession of a knife knife at the victim's house to steal property and opened a knife knife for the purpose of evading arrest in preparation for the occurrence of a crime, and opened the knife knife for the purpose of threatening the victim to escape arrest, etc. while finding the stolen goods, and sufficiently recognizes the fact that the knife knife knife knife knife knife knife knife knife k

However, considering the following circumstances as to each of the grounds for appeal as to mental and physical disorder: (a) considering the following circumstances: (b) the Defendant’s level of reputation, the degree of drinking at the time of committing the instant crime, the Defendant’s attitude and words before and after committing the instant crime, and the method of committing the instant crime; (c) although the Defendant was under the influence of alcohol at the time of committing the instant crime, it appears that the Defendant was not in a state of mental and physical disorder; and (d) contrary to the reasoning of the lower judgment on this point, the foregoing appeal cannot

The following grounds for appeal on unreasonable sentencing are examined ex officio before determining the grounds for appeal on unfair sentencing:

Quasi-Robbery or quasi-special robbery caused by false larceny is considered as belonging to the same criminal attitude as attempted general robbery or general special robbery in that the purpose of property deprivation is not achieved.

In addition, the punishment for quasi-Robbery shall be governed by the example of simple robbery under Article 333 and special robbery under Article 334 of the Criminal Act. Since each crime is listed in the penal provisions for attempted robbery under Article 342 of the Criminal Act, the penal provisions for attempted robbery shall also be applied in accordance with each case (However, this conflict with the purport of the Supreme Court Decision 19Do1353 Decided October 23, 1969 and Supreme Court Decision 69Do1353 Decided October 23, 1969).

However, in the case of this case, since the theft of the defendant was committed against the attempted crime, the court below should have applied the attempted crime of quasi-special robbery, but it erred by misapprehending the legal principles on attempted crime of quasi-special robbery, thereby affecting the conclusion of the judgment.

Therefore, since the judgment of the court below cannot be maintained in this respect, it shall reverse the judgment of the court below ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and it shall be decided again after pleading as follows.

The summary of the criminal facts and the evidence of the defendant recognized by the court is as stated in each corresponding column of the judgment below, except for the deletion of the criminal facts of the court below No. 8 in the judgment, and inserting "the defendant committed an attempted crime without achieving the intent of theft by scambling it by scambling it in the student room" and "Arrest" between "the student room" and "the arrest". Thus, all of them are cited by Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 335, 334(2) and (1), and 342 of the Criminal Act

2. Statutory mitigation;

Articles 25 and 55(1)3 of the Criminal Act

3. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (agreement with the victim, re-determination)

4. Calculation of days of detention;

Article 57 of the Criminal Act

It is so decided as per Disposition for the above reasons.

Judges Lee Yong-soo (Presiding Judge)