[1] Criteria for determining attempted and attempted commission of quasi-Robbery

[2] The case affirming the judgment of the court below which held that the thief committed an assaulting act for the purpose of evading arrest shall be regarded as an attempted robbery

[1] [Majority Opinion] Article 335 of the Criminal Act is a quasi-Robbery in which a thief commits violence or intimidation in order to resist the recovery of stolen property, to escape arrest or to destroy a trace of the crime, and the purport of punishment according to the precedent of robbery is that there is a difference before and after the order of time between the taking of property, which is the constituent element of the crime of robbery and quasi-Robbery, and the assault and intimidation, and it is substantially unlawful. In full view of the legislative purport of the crime of quasi-Robbery, balance between the crime of robbery and the crime of robbery, etc., the issue of whether the crime of quasi-Robbery may be established shall be determined on the basis of

[Separate Opinion] In addition to recognizing an attempted crime of robbery based on the basis of assault and intimidation, it is reasonable to maintain balance between the attempted crime of robbery and the attempted crime of robbery in addition to recognizing the attempted crime of robbery.

[Dissenting Opinion] The crime of robbery and quasi-Robbery shall be deemed to vary from the purport and essence of the crime, and the subject of the quasi-Robbery shall be larceny and include not only attempted attempts under the Criminal Act but also attempts under the penal provisions. However, the distinction between attempted robbery and attempted robbery shall be determined depending on the fact that assault or intimidation, which is an element of the crime, has been terminated. This accords with the language and text of the provisions of the Act and the legal principles of attempted robbery.

[2] The case affirming the judgment of the court below which held that the thief committed an assaulting act for the purpose of evading arrest shall be regarded as an attempted robbery

[1] Articles 25(1), 335, and 342 of the Criminal Act / [2] Articles 335 and 342 of the Criminal Act

[1] Supreme Court en banc Decision 73Do1553 decided Nov. 13, 1973 (Gong1973, 7621), Supreme Court Decision 81Do409 decided Mar. 24, 1981 (Gong1981, 13856), Supreme Court Decision 90Do193 decided Apr. 24, 1990 (Gong190, 11966)

Defendant

Prosecutor

Attorney Lee Young-young

Busan High Court Decision 2004No309 delivered on July 28, 2004

The appeal is dismissed.

1. In Article 335 of the Criminal Act, when a thief uses violence or intimidation in order to resist the recovery of stolen property, to escape arrest or to destroy a trace of the crime, the purport of punishment according to the precedent of robbery is that there is a difference between the act of robbery and the act of assault or intimidation in order of time, which is the constituent element of the crime of robbery, and the crime of robbery, and the crime of robbery, and the actual illegality is the same.

Therefore, as in cases where a thief commits an attempted robbery, even if a thief commits an attempted robbery, it is reasonable to punish him/her corresponding to the attempted robbery even in cases where the thief commits an attempted robbery, as well as a person who did not achieve the purpose thereof, using the means of assault and intimidation against the victim as a means of assault and intimidation. In cases of robbery, even though the thief commits an attempted robbery, if he/she decides the attempted robbery and attempted robbery based on assault and intimidation, it would be subject to punishment for the attempted robbery even if he/she commits an assault and intimidation without theft, thereby causing imbalance with the crime of robbery.

Considering the legislative purport of the crime of quasi-Robbery as above and the balance between the crime of robbery and the crime of robbery, it is reasonable to view that whether the crime of quasi-Robbery is based on the acceptance of the theft act should be determined.

Unlike this, Supreme Court Decisions 64Do504 Decided November 20, 1964; 69Do1353 Decided October 23, 1969, etc., which held that if a thief committed an assault to evade arrest, such an attempted robbery cannot be deemed an attempted robbery, shall be amended to the extent that it conflicts with the above legal doctrine.

2. According to the reasoning of the judgment below, the court below, based on its adopted evidence, found the following facts: (a) while the defendant was in physical colored for the purpose of theft of the two owners in collaboration with the non-indicted, around 06:30 on December 9, 2003, the second victim 1 was operated by the non-indicted 2 from among the buildings of the 2nd and the 5th floor located in Busan Jin-gu, Busan, Busan, on December 9, 2003; (b) the non-indicted 2 was in contact with the defendant without any electricity between the stairs of the first and the second floor; (c) the defendant was in contact with the defendant in the first floor and the second floor; and (d) the defendant was in contact with the defendant at the display site of the above main point, and was in preparation in advance of the amount equivalent to KRW 1,622,000 on the display site of the above main point, he opened the entrance of the non-indicted 2 with the intention of arresting the defendant, and opened the defendant 2.

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by Justice Yoon Jae-sik, Justice Shin Shin-chul, Justice Shin Hyun-chul, and a dissenting opinion by Justice

3. The separate opinion by Justice Yoon Jae-sik, Justice Shin Shin-chul and Justice Shin Hyun-chul is as follows.

As in the instant case, I agree with the Majority Opinion that in a case where a thief commits violence or intimidation for the purpose of evading arrest, etc., it cannot be punished as a attempted crime of robbery. However, I cannot agree with the Majority Opinion that the validity of quasi-Robbery should be determined solely on the basis of whether the act of larceny was committed.

The crime of quasi-Robbery as stipulated in Article 335 of the Criminal Act is established by assault or intimidation in order for thief to resist the recovery of stolen property, to escape arrest or to destroy a trace of the crime. Thus, in the crime of quasi-Robbery, the subject of the act shall be the thief (including the attempted crime), but the act constituting the elements of the act shall be regarded as assault or intimidation.

However, in the crime of quasi-Robbery, violence or intimidation is required to be deemed as a means of suppressing people's resistance against the general robbery in a balanced manner (see Supreme Court Decisions 81Do409, Mar. 24, 1981; 90Do193, Apr. 24, 1990; 90Do193, Apr. 24, 199). Thus, the commencement of the crime of quasi-Robbery should be deemed to be the commencement of the crime of quasi-Robbery when the person commences violence or intimidation to the extent of suppressing people's resistance from the general and objective perspective.

Furthermore, Article 342 of the Criminal Act provides that an attempted crime under Article 335 of the Criminal Act shall be punished. Article 25(1) of the Criminal Act provides that a person shall be punished as an attempted crime if the commission of a crime does not terminate or if the commission of the crime does not occur. As such, in principle, the crime of quasi-Robbery shall be determined based on the situation after the commencement of the commission of the crime. Therefore, even in the case of quasi-Robbery, in a case of robbery, where a thief initiates violence or intimidation to a degree of suppressing people’s resistance in general and objective view, but if the act is not completed or if the result does not occur, it shall be punished as an attempted crime of quasi-Robbery under Articles 25, 335 and 342 of the Criminal Act.

In the case of assault under Article 260(1) of the Criminal Act, which means "any unlawful attack, such as the exercise of force to a person's body," it is difficult to present such an act in cases of attempted assault, and the Criminal Act does not have a provision punishing an attempted assault, but in cases of intimidation under Article 283(1) of the Criminal Act, such act may be presented in cases of attempted assault, and the Criminal Act also provides that an attempted assault or intimidation shall be punished under Article 286 of the Criminal Act, and further in cases of robbery, unlike the concept of assault or intimidation under Articles 260(1) and 283(1) of the Criminal Act, it is required to punish a person's resistance from a general and objective perspective in light of the concept of assault or intimidation under Articles 260(1) and 283(1) of the Criminal Act, since such act of assault or intimidation has not arrived at the other party, but has not reached the other party, it shall be objectively deemed that such an attempted assault or intimidation has not reached the other party's resistance.

However, Article 335 of the Criminal Act provides that in light of the fact that a thief's act of assaulting or threatening for the purpose of resisting the recovery of property in an opportunity for larceny has substantial illegality, such as the robbery that may be shown as a means of taking property in the form of such act, and thus, it is a provision for punishing the thief by the example of robbery (see Supreme Court en banc Decision 73Do1553, Nov. 13, 1973) and various arguments cited by the majority opinion, it is reasonable to maintain a balance between the attempted robbery and the attempted robbery, in addition to recognizing the attempted robbery based on the act of assault and intimidation, in cases where the act of larceny committed an attempted robbery, it is deemed that the act of larceny was an attempted crime of robbery.

Therefore, if one of the assaults, intimidations, or thefts commits an attempted crime, it shall be deemed that it constitutes an attempted crime of quasi-Robbery. Therefore, the majority opinion does not agree with the case where punishment should be imposed as an attempted crime of the remaining quasi-Robbery, which is only based on whether the act of theft was committed. Therefore, I express my concurring opinion.

4. Dissenting Opinion by Justice Joh Ji-dam is as follows.

A. The Majority Opinion, in full view of the legislative purport of the quasi-Robbery and the balance between the crime of robbery and the crime of robbery, it is reasonable to view that the issue of whether the crime of quasi-Robbery is based on the basis of whether the crime of quasi-Robbery is permissible or not, and the previous Supreme Court precedents contrary to such view should be

However, it is difficult to agree with this view because it is derived from the misunderstanding of the nature of quasi-Robbery and the legal principles on attempted crime.

B. In Article 335 of the Criminal Act, the Majority Opinion’s main argument is that, in a case where a thief commits violence or intimidation in order to resist recovery of stolen property, to escape arrest or to destroy a trace of the crime, the punishment should be imposed in the same manner as the crime of robbery is based on the following: (a) there is a difference between the taking of property which is the constituent element of the crime of robbery and quasi-Robbery and the taking of violence and intimidation before and after the time, and the actual illegality

However, the crime of robbery under Article 335 of the Criminal Act is an independent crime which is punishable as the crime of robbery in criminal policy due to the danger of the act, and the crime of robbery and quasi-Robbery are included in violence and intimidation for the purpose of evading or destroying the crime of robbery, in addition to assault and intimidation with which the identity of the crime of robbery can be recognized, as well as assault and intimidation for the purpose of evading or avoiding the crime of robbery and avoiding the crime of robbery. Therefore, the crime of robbery

In addition, in the crime of robbery, the majority opinion does not match the balance that if a larceny attempted commits assault and intimidation with a view to resisting the recovery of property, even though the property should be taken by force, it would be punished equally as the number of robbery. However, even if the attempted larceny committed assault or intimidation to the extent that a certain purpose is to suppress a person’s resistance for a certain purpose, it cannot be concluded that the substantial illegality is the same as the crime of robbery and that punishment is unreasonable in criminal policy or that it does not coincide with the number of robbery, and that the larceny was committed with an attempted robbery, it cannot be determined that it would be punished equally as the number of robbery crimes, and that the crime of robbery was committed by taking into account favorable circumstances in the course of sentencing. In this regard, it is doubtful that the majority opinion's argument that the crime of robbery is in question is reasonable.

Furthermore, in the crime of quasi-Robbery, the subject of the act is "thief," and the constituent act is "a person who uses violence or intimidation in order to resist the recovery of the stolen, to escape arrest or to destroy the trace of the crime". Meanwhile, as seen in Article 25 (1) of the Criminal Act, the standard to distinguish the term and the attempted act of a crime is whether the crime is completed, that is, whether the act is completed or not. Therefore, the subject of the quasi-Robbery is larceny, and the subject of the quasi-Robbery includes an attempted act under the Criminal Act as well as an attempted act under the penal provision. However, it is interpreted that the distinction of the term and attempted act of quasi-Robbery is determined according to the language and text of the provisions of the Act and the legal principles of the attempted crime.

Ultimately, the argument of the majority opinion is not reasonable, and even if imbalance is acknowledged as the assertion, it is the nature to be solved at the stage of sentencing, and if there is any imbalance that cannot be resolved at the stage of sentencing, it is necessary to solve it by lowering the statutory punishment for quasi-Robbery or limiting the subject of quasi-Robbery to the number of larceny by excluding attempted larceny from the subject of quasi-Robbery. Thus, the attempt of the majority opinion to solve it by the interpretation of Article 335 of the Criminal Act is not allowed in the interpretation of the legal provisions, and it is not against the nature of the crime of quasi-Robbery and the legal principles for attempted robbery.

C. For the foregoing reasons, we cannot agree with the Majority, and the Supreme Court precedents that the Majority Opinion should be modified must be maintained as it is.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with the assent of all Justices Lee Jae-chul, Justice Lee Jae-chul, Justice Kim Yong-dam (Presiding Justice).