Defendant

Both parties

Park Ho-ho

Attorney Kim Yoon-young

Seoul Central District Court Decision 2009Gohap1325 Decided January 26, 2010

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for ten years.

The number of seized drones 2 (Evidence 1) and 1 even (Evidence 3) shall be confiscated, respectively.

1. Defendant's assertion of mental disability or mental retardation;

The Defendant asserts that, at the time of committing the instant crime, the Defendant was under the influence of alcohol, and was in a state of mental disorder or mental disability.

Even though the Defendant was aware that he was drinking at the time of committing the instant crime, considering the criminal process of the instant crime, the Defendant’s behavior before and after the instant crime, etc., it does not seem that the Defendant did not have the ability to discern things or make decisions under the influence of alcohol, and thus, the Defendant’s assertion is without merit.

2. Defense counsel's assertion;

A. The defense counsel asserts that the act of bringing the handbag of Nonindicted 2 by Nonindicted 2 does not constitute a taking by force because the place of the instant crime was the residence of Nonindicted 2 and the owner of the handbag brought by the Defendant was Nonindicted 2, and Nonindicted 2 was a self-employed person.

However, in the crime of robbery, violence and intimidation must be imposed on the owner or possessor of property by means of taking property as a means of taking property away. Therefore, defense counsel's assertion is without merit.

B. In addition, the defense counsel asserts that the crime of this case only constitutes concurrent crimes of special rape and special robbery in the event that the criminal takes rape property and does not constitute crimes of special robbery.

The crime of robbery, robbery, and robbery committed rape in an opportunity to commit robbery. As such, the crime of robbery is not established in the case where the rape offender forcibly takes property on the part of the victim’s fear after the completion of sexual intercourse, and constitutes a concurrent crime of robbery and robbery. However, the crime of robbery is not different in the case where the rape offender commits robbery before the completion of rape and continues rape and continues rape. Thus, the crime of robbery is established on the ground that it does not constitute rape in the opportunity to commit robbery.

In this case, the Defendant’s act of inserting his sexual organ into Nonindicted Party 1’s sexual organ and towing it out of the entrance, and the act of inserting his sexual organ into Nonindicted Party 1’s sexual organ is evaluated as a single rape on the basis of a single criminal intent. Therefore, the Defendant’s act constitutes a special robbery since he forcibly takes property before the rape is completed.

3. Prosecutor and Defendant’s assertion of unreasonable sentencing

The prosecutor appealed that the sentence of the court below (12 years of imprisonment) is too unhued and unreasonable, and the defendant appealed from the court below to the extent that it is too unreasonable.

Even though the Defendant was sentenced to imprisonment for a long time due to a crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (special robbery, rape, etc.), the Defendant committed the instant crime of the same kind again during the period of repeated crime after the enforcement of the sentence was completed, and it is not good to commit the instant crime of the same kind.

However, in full view of all the circumstances revealed in the arguments, such as the process of the crime in this case and the circumstances after the crime in this case, the punishment of the court below is deemed to be unfairly heavy, in full view of the following: (a) the defendant has a depth of misunderstanding and life in good faith while attending a workplace, resulting in the crime in this case by contingency; (b) the damage from robbery was not significant; and (c) the victim agreed with rape victim and the victim complained of the wife of the defendant; and (d) the defendant

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment of the court below is reversed, and it is again decided as follows, on the ground that the defendant's appeal of mental and physical disability, mental disability

The summary of the facts charged and the evidence recognized by this court are as shown in each corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 5(2) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (Amended by Act No. 10258, Apr. 15, 2010); Articles 334(1), 333, 297 (Special Robbery and Rape; Selection of Imprisonment) of the Criminal Act; Article 319(1) of each Criminal Act (a residential intrusion and choice of imprisonment)

1. Aggravation for repeated crimes;

Article 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes, the proviso to Article 42 of the Criminal Act (Special Cases concerning the Punishment of Sexual Crimes and Violation of the Act on the Protection, etc. of Victims) and Article 35 of the Criminal Act (Special Cases concerning Intrusion upon Residence)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Punishment of Sexual Crimes, Violation of the Protection of Victims, etc. (Special Robbery, Rape, etc.)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act. Article 55(1)3 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judges Choi Jae-in (Presiding Judge)