Whether the provision concerning relative relative funeral cases is applied to a case where the thief has a relationship of kinship only between the owner or possessor of the damaged article and any other person.

The provisions concerning the degree of relative funeral shall apply only to cases where a relationship of relationship exists between the offender and the owner and the possessor of an article damaged by a thief, and in cases where a thief has a relationship of relationship only between either the owner or possessor of an article damaged by a th

Articles 344 and 328 of the Criminal Act

Defendant

Prosecutor

Seoul Criminal Court Decision 79No3969 delivered on November 30, 1979

The original judgment is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the prosecutor's grounds of appeal.

On August 8, 1978: around 00, the court below acknowledged that the defendant stolen the amount of 1380,000 won at the above Hongmond 6 Do joint market price owned by the defendant, which was under custody upon the request of non-indicted 1 to process from the red heat other than the public prosecution at the Sejong factory operated by the non-indicted 4A and the non-indicted 1, the defendant and non-indicted 1, as the birth quality of the defendant (the non-indicted 2's son who is the defendant's life), have a relationship under Article 328 (2) of the Criminal Act applied mutatis mutandis pursuant to Article 344 of the Criminal Act, and the provisions concerning the crime between the above relatives are not regarding the relation between the owner of the damaged article and the criminal, but regarding the relation between the possessor of the damaged article, which is the direct victim of larceny, and therefore, the crime of larceny was not prosecuted by the non-indicted 34 and the non-indicted 24 of the Criminal Act.

However, since larceny is established due to the deprivation of possession of the property, the possessor of the property becomes the victim of larceny, or since larceny is an deprivation of possession of the possessor, the owner of the property shall also be deemed the victim of larceny.

In addition, Article 328(2) of the Criminal Code, which applies mutatis mutandis by Article 344 of the Criminal Code, applies only to cases where a relationship between a thief and an owner or possessor of a damaged article exists as provided in the same Article. In addition, it is reasonable to view that there is no relationship between a thief and an owner of a stolen article or only between a thief and the possessor of a damaged article.

However, Article 328 (2) of the Criminal Act, which applies mutatis mutandis under Article 344 of the Criminal Act, shall not be applicable to the defendant, if the defendant has only a relationship with the non-indicted 1, who is the possessor of the damaged article in this case, and if the defendant does not have a relationship with the non-indicted 1, who is the owner of the damaged article, there is no relationship with the non-indicted 1, and there is no relationship with the non-indicted 1, who is the owner of the damaged article in this case, the court of first instance who dismissed the public prosecution by applying the provisions on crimes between the above relatives, maintaining the judgment of the court of first instance, which dismissed the public prosecution against the defendant,

The appeal pointing this out is with merit.

Therefore, the original judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Tae-hee (Presiding Justice)