2011Do10460 A. Quasi-Robbery

(b) Night building theft;

(c) Larceny;

(d) Attempted larceny;

(e) Night theft;

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Busan

Busan District Court

Defendant

Omission

Busan High Court Decision 2011No327 decided July 21, 2011

October 13, 2011

The judgment below is reversed, and the case is remanded to Busan High Court.

1. We examine the grounds of appeal on the degree of assault, which is a constituent element of quasi-Robbery.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the court below acknowledged the fact that the defendant escaped after cutting down the chest part of the defendant's chest to the victim, and the victim appealeded with her her amb, her amb, etc. in the process. In light of the above, the court below is just in holding that the defendant's act had led to suppression of the victim's intention to arrest or attack to the extent that it makes the victim impossible or considerably difficult to arrest any more in general and objectively, and there is no error in the misapprehension of legal principles as to the degree of assault, which is a constituent element of the crime of robbery, as otherwise alleged in the ground of appeal

2. We examine ex officio whether the crime of quasi-Robbery was committed.

Article 335 of the Criminal Act provides that when 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 crime of robbery is punishable according to the example of robbery because the crime of robbery only differs before and after the time between the taking of property, which is the constituent element of the crime of robbery and quasi-Robbery, and the assault and intimidation. Considering the legislative intent of the crime of robbery and the balance with the crime of robbery, etc. comprehensively, the issue of whether the crime of robbery of quasi-Robbery is constituted shall be determined on the basis of whether the crime of robbery was committed (see Supreme Court en banc Decision 2004Do5074, Nov. 18, 2004).

However, the summary of the facts charged as to the quasi-Robbery of this case is as follows: “Defendant on February 23, 2011.”

19: Around 30, the victim Gaboo operated in Busan, opened a gate which was not corrected by the victim Gab○, and intrudes into the victim Gab○○, and then boomed the stolen objects, and assaulted the victim Gab○○ by her hand with the aim of evading arrest of the victim Gab○ who was cut off from the room to the Gab○○, with the intention of evading arrest. "As it is, it is obvious that the thief of the defendant did not reach the number of pages, it is evident that the thief itself is based on the charge itself.

Nevertheless, the court below erred by misapprehending the legal principles on the acceptance of the quasi-Robbery crime, thereby adversely affecting the conclusion of the judgment, on the ground that the quasi-Robbery crime in this case occurred.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below concerning quasi-Robbery should be reversed. The court below held that this part of the judgment below is a concurrent crime between the defendant's remaining criminal facts and Article 37 of the Criminal Act and rendered a single sentence. Accordingly, the whole judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by

Justices Jeon Soo-ahn

Justices Kim Ji-hyung

Justices Yang Chang-soo

Note Justice Lee Sang-hoon