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(영문) 서울고등법원 2015.12.16 2015노2974
강도상해
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

However, for three years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal by the defendant;

A. In the process of ascertaining the fact that the defendant suffered injury to the victims by using contingent violence in the course of confirming the victim G or the claims and obligations, the defendant did not have the intention of injury by robbery.

B. Since the Defendant voluntarily surrenders himself to the crime of this case, and the robbery, which is a basic crime, committed an attempted crime, the lower court erred by misapprehending the legal doctrine, even though the crime of robbery was not based on an attempted crime, and thereby did not have to be mitigated by law.

C. The lower court’s sentence of unreasonable sentencing (three years and six months of imprisonment) is too unreasonable.

2. Determination:

A. In a case where each of the victims was inflicted an injury upon the victim by committing an ex officio robbery, or by committing a robbery, prior to the judgment on the grounds of appeal for ex officio determination, several robbery and injury by each of the victims are established, and these crimes are deemed to have the relation of substantive concurrent crimes.

(See Supreme Court Decision 2008Do8602 Decided November 27, 2008) The facts charged in this case are that the defendant committed violence against the victim G and J in the opportunity of robbery. Since the crime of robbery injury against each victim is a concurrent crime under the former part of Article 37 of the Criminal Act, the court below erred by misapprehending the legal principles on the number of crimes, which affected the conclusion of the judgment.

However, even if there is a reason to reverse ex officio, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court, which will be examined below.

B. According to the evidence duly admitted and examined by the court below as to the assertion of mistake of facts, the victim G is consistent with the purport that he was forced by the husband C, etc. of the defendant to put himself on the vehicle and was assaulted by the defendant during that process.

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