(영문) 서울중앙지방법원 2019.2.15. 선고 2018고합390 판결

The Defendant purchased the “Criju station located in Dong-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-do,” adjacent to the point where B’s pipelines are laid underground, and sold the land and sold the land, and installed a facility for drilling the hole on the oil pipelines to steals the petroleum managed by the said Corporation.

(a) Installation of gambling facilities;

Around November 2016, the Defendant entered into a sales contract with E that operated the said gas station, and installed two mouths and pressure valves and high pressure valves on the oil pipelines buried near the gas station from March 2017 to May 2017.

In addition, after connecting the above high voltage strings to the above gas station with a total of 250 meters, the pressure meters (a system confirming whether oil oil has been oil oil), weight meters (a system confirming petroleum oil oil oil oil oil oil), powdering engines (a system distinguishing oil oil species), etc. were installed in the gas station and connected to the storage tank.

Accordingly, the Defendant installed facilities to steal oil on the oil pipelines managed by the said Corporation.

(b) Petroleum theft using gas facilities;

The Defendant had F, who did not proceed as scheduled, leased the above gas station to F, and had F, do so with the intent to steal petroleum using the gas station together with F;

On April 10, 2017, F had F leased the pertinent gas station.

From the end of May 2017 to August 30, 2017, the Defendant, along with F, moved oil being transported from oil pipelines by opening a valve of high voltage sphers connected from oil pipelines using oil facilities installed as above from the end of May 2017 to the above oil station storage tank, thereby reducing the market price equivalent to 39,660,00 liter of gasoline amounting to 55,947,00 won in the market price, including gasoline amounting to 51,00 liter 2) of petroleum amounting to 81,000 liter of petroleum amounting to 39,660,000 won in the market price owned by the victim G corporation controlled by the said Corporation.

Accordingly, the Defendant, in collusion with F, stolen oil owned by the victim G corporation by using facilities installed on oil pipelines.

2. Violation of the Oil Pipeline Safety Control Act relating to “H oil stations”

On March 2, 2018, the Defendant conspired to steal petroleum by drilling and high voltages connected to the oil pipelines managed by B located near H oil stations in the area of the oil station located around the Seocho-nam War I on March 2, 2018.

From March 2018 to March 2, 2018, the Defendant, along with his name-free boxes, 2: (a) around H’s oil station; (b) around H’s oil station; (c) one person sees the network with the telescope; and (d) other two persons, using equipment, such as insertings, gros, pits, hos, gars, and glags, have engaged in 3 meters in depth, 3 meters in length, and 4 meters in width; (d) however, the Defendant was arrested to the police for committing the crime described in the foregoing paragraph (1).

Accordingly, the defendant, in collusion with two infinites, tried to install facilities to steal oil on the oil pipelines, but failed to commit such act.

“2018, 800

On March 10, 2017, the Defendant sentenced K, L, and M (K to five years of imprisonment at the Daegu District Court on December 15, 2016) to five years of suspended execution, L was sentenced to three years of suspended execution at the Daegu District Court on June 17, 2016. M was sentenced to three years of imprisonment at the Daegu District Court on June 17, 2016, and was sentenced to three years of suspended execution (three years of suspended execution at the Daegu District Court on July 8, 2016), N (S was sentenced to three years of suspended execution at the Daegu District Court on July 2, 2016) to install a "PP station" in the Daegu District Court around December 12, 2014, the Defendant and his accomplice were to install the above facilities to transport goods to the Oil Pipeline, to maintain the pressure and pressure of oil storage and treatment of oil, and to install the aforementioned facilities to connect them with the aforementioned facilities to the Corporation, and to install and maintain the Q2.

1. Installation of gambling facilities;

The Defendant started the construction of the gas station from December 2014 to April 2015, along with K, M, Q, J, and nameless boxes, to start the construction of the gas station from around December 2014 to around January 2015. The Defendant installed a special valve by drilling the hole to the oil pipelines located approximately 200 meters away from the said gas station (round 48 kilometers from the mountain pumps to the Daegu pumphead) and installing a high pressure tank to store the underground oil in the oil station. In preparation for detection, the Defendant installed a sprink, oil pressure gauge, valves, valves, and storage tank to store the gas.

Accordingly, the Defendant installed facilities to steal oil on the oil pipelines in collusion with K, M, Q, J, false name boxes, etc.

2. Theft of petroleum using milk facilities;

The Defendant, along with K, M, Q, J, N, L, etc., stolen a total of 2,87,130,50 square meters of petroleum (number of gasoline 609,00 liters, light oil 1,891,900 liters, light oil, etc., 33,00 liters, mixed oil 25,60 liters, mixed oil 25,60 liters) holding the oil in the oil pipelines by cutting off oil in the oil pipelines from around April 9, 2015 to November 26, 2015 by using facilities installed as mentioned in the preceding paragraph.

Summary of Evidence

[2018Gohap390]

1. Partial statement of the defendant;

1. Partial statement of F;

1. Second instance prosecutor's protocol of interrogation of F: 7);

1. A copy of the investigation report (related to overall conditions, such as the installation of a gas station at the time of crackdown), copy of the investigation report (related to the oil pipelines laid underground and the C gas station photographs), copy of the investigation report (related to photographs of the C gas station), the investigation report (H's confirmation of the place of installation of a gas station around the gas station, and the application for ex post facto search, seizure and verification warrant), the investigation report (related to the C gas station's quantity of flow and the fixed amount of sales

1. Photographs and documentary evidence at the scene of crime;

[2018 Highis800]

1. Partial statement of the defendant;

1. Each legal statement of witness M, Q, J, K and N;

1. Copies of each seizure protocol (Nos. 12 to 14 of the evidence list);

1. A copy of an investigation report (in the face of delivery of money), a copy of an investigation report (in the face of delivery of money), a copy of an application for registration of petroleum selling business, etc., a copy of an investigation report (in the face of an application for registration of petroleum selling business), a copy of an investigation report (in the face of an underground passage), a copy of an investigation report (in the face of an investigation report), a copy of an investigation report (in the face of an investigation date), a copy of a criminal investigation report (in the face of an investigation date), a copy of an investigation report (in the face of an underground oil shipping date by a region), a copy of an investigation report (in the face of an investigation report), a copy of an investigation report (in the face of an investigation date), a copy of an investigation report (in the face of an investigation date),

1. Submission of each photograph (Evidence Nos. 4. 30. 32), interview photograph, copy of mersh, currency details, average sales price by region, current status of the gas station in the storage of gas stations, written judgments (Evidence No. 60), and B answers;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 13(1)2 of the Oil Pipeline Safety Control Act ("C gas station"), Article 13(6) and 2 of the Oil Pipeline Safety Control Act, Article 13(1)2 of the Oil Pipeline Safety Control Act, Article 30 of the Criminal Act (the attempted installation of the oil pipeline), Article 13(1)2 of the Oil Pipeline Safety Control Act, Article 30 of the Criminal Act (the installation of the oil pipeline-related oil station, the choice of imprisonment), Articles 13-2(1) and 13(1)2 of the Oil Pipeline Safety Control Act, Article 30 of the Criminal Act (the installation of the oil pipeline-related oil facility, including the theft of oil using the oil pipeline facility, and each of the gas stations), Article 13-2(1)2 of the Oil Pipeline Safety Control Act, Article 30 of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2, and 50 of the Criminal Act (an aggravated punishment and concurrent punishment prescribed in the violation of the Oil Pipeline Safety Control Act following the installation of oil station related to the "PP station," which is the largest penalty)

1. Dismissal of application for compensation;

Article 32(1)3, and Article 25(3)3 and 4 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the existence and scope of liability of the accused is unclear and it is not reasonable to issue an order for compensation in criminal proceedings)

【Public Prosecutor’s Office of Seoul Central Public Prosecutor’s Office’s seizure of the evidence Nos. 1, 2, 4, and 9 of 2018, 1910, the above evidence No. 1, 2, and 4 through 9 of 2018, but there is no evidence to deem that the above evidence No. 1, 2, and 4 through 9 of 300

Judgment on the Defendant and defense counsel's argument

1. Claims on violations of the Oil Pipeline Safety Control Act following the theft of oil using oil supply facilities in the case of 2018 Gohap390;

A. Summary of the assertion

Although the Defendant installed oil facilities by drilling the hole on the pipelines buried near the “Cju Oil”, the amount of petroleum that was stolen by using the oil facilities is merely 20,000 to 30,000 liter.

(b) judgment;

According to the evidence duly adopted and duly examined by the court, F, an accomplice, stated that the flow quantity from the second examination of the prosecution to the court below was 30,000 liter’s total 80,000 liter’s account (Account Number Y) used in C, based on the contents of cash withdrawal in the X bank account (Account Number Y) used in C, the amount of each day was specified as 81,00 liter as shown in attached Table (Evidence 2810, 2811 of the evidence record No. 2018, 201). According to F’s statement, F, in collusion with F, is reliable, and credibility is recognized as 81,00 liter’s quantity of petroleum stolen in collusion with F, and according to F’s reliable statement, etc., this part of the Defendant and defense counsel’s assertion is not acceptable.

2. Claims concerning violations of oil pipeline safety control in cases of 2018Gohap800;

A. Summary of the assertion

The Defendant did not have any participation in the crime of cutting petroleum using K, etc. and oil facilities, or committed the crime of cutting petroleum using gas facilities. However, the Defendant was aware of the fact that K, etc. was stolen by installing a gas facility at the latest around October 2015.

B. Determination

In light of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated by this court, the Defendant, as stated in the facts charged in the case 2018Dahap8000, can establish the fact that the Defendant, in collusion with K, etc., installed oil facilities on the oil pipelines managed by K and used oil facilities and stolen petroleum. Thus, this part of the Defendant and the defense counsel’s assertion is rejected.

1) K, J, Q and M, who are co-offenders to each of the above crimes, in this Court, pipes of a Pjun station by all the Defendant in this Court

When taking charge of construction and storage tank reclamation works, technicians were engaged in the installation of oil facilities, such as drilling holes, installing a special valve on the oil pipelines, and laying a high pressure tank up to the storage tank, or the Defendant stated to the effect that he is aware of the installation of oil facilities. Since the above accomplices already received judgment of conviction due to this part of the crime and the judgment became final, they did not appear to have made a false statement to transfer their responsibility to the Defendant in order to avoid their responsibility, and in light of the attitude of the statement in this court, they do not seem to have taken advantage of the Defendant’s malicious testimony.

2) As seen in the instant case, the crime of installing a facility by drilling a hole on the oil pipelines, attaching a pressure valve and laying a high pressure valve is likely to pose a high level of risk, and is in need of advanced technology. Of the accomplices such as K, there is no person holding such technology among the accomplices. The Defendant appears to have held the technology of installing a gas facility in a similar way as in the instant case around 2017 and around 2018.

3) From October 2014 to March 2015, the Defendant appears to have invested KRW 200 million in and overall engaged in the establishment of “PP gas station” to be responsible for the installation of pipes and storage tanks. In the instant case, high voltages to move stolen petroleum from the oil pipelines connected to the storage tanks buried underground in the gas station, and the crime of theft of petroleum using the oil installed as above began from April 9, 2014, immediately after the completion of the construction of the “P gas station.” As such, the Defendant participated in the installation of the “P gas station immediately before the crime of theft”, in particular in the installation of pipes and storage tanks.

4) Around October 23, 2015, the Defendant stated to the effect that “A worker B, who is the seat of the Defendant, demands K, etc. to pay KRW 100 million by viewing the fact of gambling,” and, under the pretext of delivering it to the said employee, the Defendant was bound to receive KRW 100 million in cash from K. If the Defendant did not have conspired or participated in each of the of the instant crimes and became aware of the accomplice’s criminal acts late around October 2015, the Defendant’s above behavior is difficult to obtain.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 15 years; and

2. Scope of recommended sentences according to the sentencing criteria;

(a) A violation of the Oil Pipeline Safety Control Act due to the theft of oil using any oil facility;

[Determination of Punishment] Type 2 (Property with High Value) for thief on Special Property

[Special Convicts] Where a person repeatedly commits a crime using a specific method, tool or organization

[Determination of Recommendation Area] Aggravation, 3 years to 6 years

(b) A violation of the Oil Pipeline Safety Control Act due to the installation of oil pipeline facilities or attempted installation of oil pipeline facilities: The sentencing criteria are not set;

(c) Scope of final recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than three years (the crime for which the sentencing criteria are set and the crime for which the sentencing criteria are not set are concurrent crimes under the former part of Article 37 of the Criminal Act, considering only the lowest limit of the sentencing range on the basis of the sentencing criteria for the crime of violation of Oil Pipeline Safety Control Act due to the theft

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○○ Unfavorable Normals: Each of the instant crimes committed on the pipelines managed by B, that the Defendant installed or attempted to install special facilities or committed a theft of oil passing through the pipelines in collusion with F, etc. In the course of the crime, there is a risk of causing large-scale accidents, such as explosion of the pipelines or fire, and pollution of surrounding soil due to the leakage of oil due to damage to the pipelines, etc. There are considerable social harm and injury. In the case of 2018 high-priced80, the amount of the oil exceeds 2.8 billion won. The Defendant did not commit the instant crime at least 30 KK, an accomplice of the 2018 large-scale 800 cases, 2000 cases, and 300 large-scale 50 cases, 2018 large-scale 300 cases, and 300 large-scale 90 cases, 208 large-scale 208 large-scale 90 cases, 2018 large-scale 390 cases, and 2080000-small Oil Pipeline.

○ A favorable condition: The Defendant has no record of criminal punishment exceeding the suspended sentence of imprisonment, or of criminal punishment for the same crime. 2018 and 1800 cases led by K, and the Defendant appears to have no significant benefit from the crime. The Defendant’s family members want to take the preference against the Defendant.

The acquittal portion

1. Summary of the facts charged

From the end of May 2017 to August 30, 2017, the Defendant, in collusion with F, committed a theft by taking advantage of the oil pipelines installed in the pipelines located near the 'Cre station located in Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-do, by taking advantage of the oil oil facilities installed in the vicinity of the 'Cre station', 179,737,798 won, the market price of which is equivalent to 135,9590 won, and the market price of 329,564,031 won, which is the sum of 300,429,301,829 won, including 300,564,031 won, and the market price of which is 509,429,301,829

2. Determination

A. The burden of proving the facts charged in a criminal trial is to be borne by the public prosecutor, and the conviction is to be based on the evidence of probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the defendant, the interest of the defendant is to be determined as the benefit of the defendant.

(See Supreme Court en banc Decision 2008Jado11 Decided January 20, 201, etc.)

B. According to the evidence duly admitted and examined by the court, ① the total amount of petroleum sales of the above gas station confirmed from May 2017 to August 30, 2017 through the sprink of the above gas station is 58,4231, gasoline 303,99; ② petroleum sales at the oil station normally operated, shall be purchased and sold at the petroleum agency, etc. officially licensed, and in such a case, the total amount of petroleum purchase of the gas station is 30 liters of the above 30 liter of the above facts. 30 liter of the above facts: 30 liter of the petroleum purchased at 30 liter of the above facts; 30 liter of the above facts: 30 liter of the petroleum purchased at 30 liter of the above facts; 30 liter of the above facts, 40 liter of the total quantity of petroleum purchased at 30 liter of the police station; 30 25 liter of the above facts

C. However, in light of the following circumstances, it is insufficient to recognize that the facts acknowledged above or the evidence submitted by the prosecutor alone constituted a theft of petroleum of 436,382 liter exceeding 81,00 liter stated in the facts constituting the crime, and there is no other evidence to acknowledge it.

1) There is no specific ground to acknowledge that the difference between the above sales amount and the sales amount was caused by the total theft of petroleum.

2) Rather, AA, which had worked as a warden in the Zusancheon in Gyeonggi-do, another gas station operated by F at the time of the above Domination period, stated to the effect that, in accordance with F’s direction, AA paid cash to transactions of petroleum without material in the vicinity of Busan-si, and that some of them were supplied as Cmination. The occurrence of a difference between the amount of petroleum sales and the amount of petroleum purchase in Cmination is likely to be excluded because the petroleum purchased as non-material is included in the foregoing.

3) During the second examination of suspect, F stated that when the Defendant deducted oil from the oil pipeline in the oil pipeline, the Defendant confirmed the remaining amount prior to oil oil tank oil oil oil and delivered the price corresponding to the difference to A in cash by confirming the remaining amount after oil oiling, and specified the amount of money paid as the price for each day based on the cash withdrawal details in the accounts of X bank in the Cju station (Evidence 81,000 square meters of total quantity (Evidence 520, 2811 of the evidence record No. 2018, 2010, 2811). In this court, F stated that the degree of flow that the Defendant stated in the prosecutor’s office was specified on the basis of the details of cash withdrawal in the above X bank account. As such, F’s statement on the degree of flow is supported by the content of cash withdrawal in the account of X bank account used in Cju station at the time of objective material.

4) As seen earlier, while the Defendant stated in the third police interrogation that the difference between the purchase quantity reported to the Institute and the quantity of spoke weather sales was an intentional flow in the third police interrogation, the Defendant stated that he did not know of the accurate flow. The second time of the interrogation of the suspect (Evidence 2018 Gohap390 pages 2541), and the second time of the interrogation of the suspect (Evidence 20,000 to 30,000 liter, and the frequency of flow in this court, are seven times, and the Defendant appears to have not been involved in the operation of the Criju station during the above period. As such, the Defendant’s statement at the time of the third police interrogation of the suspect appears to have been made by a vague trend.

3. Sub-resolution:

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, it should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the facts charged within the scope of the above facts charged

Judges

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

Note tin

1) Some of the facts charged were revised according to the facts obtained through the examination of evidence to the extent that the Defendant did not materially disadvantage the Defendant’s exercise of the right to defense.

2) As seen below, the Defendant’s total quantity of petroleum that was stolen in collusion with F can be recognized as 81,000. However, in relation to the quantity of each kind of oil flow, the Defendant’s specific amount of gasoline 30,000, light oil 51,000 shall be recognized as 1 in favor of the Defendant.

3) The investigative agency calculated the market price of petroleum by applying the lowest market price of petroleum (referring to the calculation system used to process petroleum purchase, inventory volume, sales status, etc. at the gas station) which can be verified by spores (referring to the calculation system used to process petroleum in the gas station), namely, 1,322 won per gasoline, and 1,097 won per gasoline (2584 pages of the evidence records 2018Dahap390). The market price of petroleum calculated by applying the above price to 81,000 ( gasoline 30,000, light oil 51,000) is 39,660,000 won (=30,000, 1,322 won), 5,947,000 won per gasoline, and 1,097,000 won per liter (250,000 won per 1,000,0000 won per 1,001,750,0000 won).

4) Since 'V' corporation as stated in the indictment changed its trade name to T stock company (T) on January 1, 201, 'V' corporation is corrected as above.

5) Since the name in the corporate register of WW Co., Ltd. stated in the indictment is U.S., it shall be corrected as above.

6) The indictment is written as KRW 2,887,130,200, but it appears to be an obvious clerical error (as stated in investigation record 1573), and the defendant’s exercise of his/her right to defense is not deemed to have any substantial disadvantage, and thus, it shall be corrected ex officio.

7) 2018 Gohap520 Pre-Evidence 41