Whether the public prosecutor's application of Articles 335 and 333 of the Criminal Act could apply to the public prosecutor's indictment, and the court's application of Articles 335 and 334 of the Criminal Act could apply to the case without any changes in indictment

It is illegal for a prosecutor to prosecute the criminal facts by applying Articles 335 and 333 of the Criminal Act, and even if there was no change in the indictment, the court's punishment by applying Articles 335 and 333 of the Criminal Act.

Articles 298, 335, 333, and 334 of the Criminal Procedure Act

Defendant

Defendant

Seoul Criminal Court of the first instance (73 Gohap186)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The sixty days of detention days before the sentence of the original judgment shall be included in the original sentence.

피고인의 항소이유 요지는 첫째, 공소 범죄사실중 절도후 체포를 면탈할 목적으로 소지중이던 과도를 피해자에게 꼼짝말고 소리치지 말라고 협박하여 항거불능케 한 사실은 저지른 일이 없음에도 원심이 피고인을 준강도죄로 의률 처단하였으니 원심판결에는 판결에 영향을 미칠 사실오인 내지 법률적용의 위법이 있다는 것이고 둘째, 피고인이 본건 범행이후인 1971.3.3. 춘천지방법원 속초지원에서 절도죄로 징역 8월에 2년간 집행유예의 선고를 받아 그 시경 동 판결이 확정되었으니 형법 제37조 후단 의 경합범임에도 원심이 동조를 적용하지 아니한 위법이 있다는 것이고 셋째, 원심이 피고인에 대하여 선고한 형의 양정이 과중하여 부당하다는 것이고, 변호인의 항소이유 요지는 첫째, 피고인의 판시소위는 형법 제335조 , 제333조 에 해당하여 그 법정형이 3년이상의 유기징역형임에도 원심은 형법 제335조 , 제334조 로 의률하였으니 원심판결에는 판결에 영향을 미칠 법률적용의 위법이 있다는 것이고, 둘째점은 피고인의 항소이유 셋째점과 같다.

Therefore, in light of the records, the first ground for appeal of the defendant is examined by examining various evidences duly adopted by the court below after examining the evidence of the court below as to the first ground for appeal of the defendant. Thus, the grounds for appeal of this point can not be accepted. The second ground for appeal is examined as to the second ground for appeal, and according to the statement in the court court of the defendant and the protocol of examination of the defendant's suspect against the defendant made by the prosecutor(s) on March 3, 1971, which is after the public health crime, the defendant was sentenced to a suspended sentence of imprisonment for 8 months for larceny and 3 months since the above judgment became final and conclusive. Since the above crime of larceny and robbery are concurrent crimes under the latter part of Article 37 of the Criminal Act, the court below erred in the application of this provision to the defendant, and the prosecutor's first ground for appeal of this case cannot be examined as to the defendant's first ground for appeal, and it did not err in the misapprehensioning of Article 35 and 334 of the Criminal Act as to the defendant's first ground for appeal.

Therefore, according to Article 364(6) of the Criminal Procedure Act, the judgment of the court below shall be reversed and the members thereof shall be decided again.

The criminal facts of the defendant who is admitted as a party member and the summary of the evidence are all criminal facts, except that "the defendant is sentenced to a suspended sentence of imprisonment for 8 months and 2 years in prison for larceny in the Seocho District Court's territorial branch on March 3, 1971, and that it becomes final and conclusive at that time" is added to "the person whose probation has become final and conclusive after being sentenced to a suspended sentence of imprisonment for 8 months in prison for larceny," as stated in each corresponding case of the

On the other hand, the court below's decision constitutes Article 335 and Article 333 of the Criminal Act and Article 37 of the Criminal Act and concurrent crimes under the latter part of Article 37 of the Criminal Act, since all of the judgment of the court below constituted larceny and the crime of robbery under the latter part of Article 37 of the Criminal Act, the court below's decision is to separately determine punishment for the crime of robbery under Article 39 (1) of the Criminal Act. The defendant was a minor at the time of this case, and the motive of this case was for the defendant to pay back medical expenses for the defendant's medical service. Since there are reasons to take into account the circumstances such as the fact that the opening of the defendant after this case had been committed is obvious, the defendant shall be punished by imprisonment for two years within the scope of the term of punishment which has been mitigated pursuant to Articles 53 and 55 (1) 3 of the Criminal Act, and 60 days from the detention days before the sentence of the court below

Judges Kim Hong-san (Presiding Judge) Constitution of the Republic of Korea