Defendant 1 and one other

Defendants

Completion of species

Man-Man Law Firm, Attorneys Oh Jeong-hee et al.

Daegu District Court Decision 2006Gohap880, 2007Gohap56 (Consolidated), 2007Gohap11(Consolidated) Decided May 2, 2007

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for not less than two years and six months.

The number of days of detention prior to the pronouncement of the judgment of the court below shall be 152 days per defendant 1, and 151 days shall be included in the above punishment against defendant 2.

Provided, That with respect to Defendant 2, the execution of the above punishment shall be suspended for four years.

The seized Makck 9) and one mother and child (No. 10) shall be forfeited from Defendant 1, and one knife knife (No. 11 of the seizure list) seized from Defendant 2, respectively.

One hand, 10,00 won, 50 won, 10,000 won, 50 won, 1,000 won, 3,000 won, 4, 2,000 won, 50 won, 50,000 won, 2,000 won, 6,000 won, 50,000 won, 50,000 won, 50,000 won, 50,000 won, 6, 2,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00

To order Defendant 2 to be put on probation for two years.

1. Summary of grounds for appeal;

A. Defendant 1

(1) Fact-finding or misunderstanding of legal principles

In relation to the crime committed on December 1, 2006 (the part concerning the crime of bodily injury by robbery) at the time of the judgment of the court below, since it is difficult to view that the defendant committed violence or intimidation to the extent that he directly suppresss the victim non-indicted 1, at the time, the crime of larceny is established. Thus, the above crime of larceny is a concurrent crime of larceny, bodily injury, or bodily injury by assault. Further, even if the victim's bodily injury is extremely minor and is naturally cured and does not receive any specific treatment, it is hard to see that it is a bodily injury as stipulated in Article 337 of the Criminal Act, and thus, it cannot be found that the court below guilty of the crime of bodily injury by robbery. Thus, the court below erred in the misapprehension of legal principles as to the crime of bodily injury by robbery or robbery.

(2) The point of unfair sentencing

In light of the fact that the defendant agreed with the victim non-indicted 2 and non-indicted 1, and that the defendant has a depth of the error, the sentence of imprisonment for three years and six months sentenced by the court below is too unreasonable.

B. Defendant 2

(1) Fact-finding or misunderstanding of legal principles

(A) As to the crime of special robbery

At the time of the original adjudication on November 29, 2006, the Defendant committed robbery at the convenience store by Defendant 1 while being unaware of the Defendant. Thus, even though the Defendant did not establish a conspiracy relationship for special robbery by carrying Defendant 1’s deadly weapons, the lower court recognized the above conspiracy relationship with the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine as to the mistake of facts or conspiracy.

(B) As to the crime of bodily injury resulting from robbery

With regard to the crime of December 1, 2006 at the time of the original adjudication, the defendant did not have conspiredd with the defendant 1 to commit robbery, and the defendant 1 did not actually use violence or intimidation to the extent that the victim's resistance was prevented at the time of the above crime, and only did the victim's hand, it should be viewed as a theft rather than an act of taking property as a means of violence, and even if the victim's hand does not receive treatment, it does not interfere with daily life even if the victim's hand is so minor and very minor that he suffers from a little knee and knee, and it can be naturally cured after the passage of time, so it cannot be deemed that the victim's health condition is changed or that the life function is hindered, and thus, the rate of injury by robbery is unfair, and even if the family's act constitutes the robbery of the defendant 1, the court below did not recognize the defendant's injury or robbery as the crime of robbery, and thus, the court below erred in the misapprehension of legal principles as to the crime of robbery.

(2) The point of unfair sentencing

In full view of the fact that the defendant agreed with the victim non-indicted 2 and non-indicted 1, the fact that the error is remarkably divided, the defendant's health condition, etc., the punishment of imprisonment for three and a half years sentenced by the court below is too unreasonable.

2. Determination

A. Determination of misconception of facts or misapprehension of legal principles as to Defendant 2’s special robbery

원심에서 적법하게 채택하여 조사한 증거들에 의하면, ① 피고인 2가 중국음식점 ‘ (명칭 생략)’에서 선불금으로 받은 100만 원을 갚지 못하고 있던 중 피고인 1이 이를 대신 갚는 조건으로 (명칭 생략)에 종업원으로 들어갔는데, 피고인 1이 돈을 갚지 못한 상태에서 일을 그만두게 되어 피고인들이 위 선불금을 급히 갚아야 하는 상황이었던 사실, ② 피고인들은 2006. 11. 27.경부터 칠곡에 있는 여관에서 같이 지내면서 위 선불금을 갚기 위해 여성들로부터 돈을 빼앗아야겠다면서 농담조로 범행을 하자는 말을 여러 번 하였고 그 과정에서 피고인 1이 돈을 빼앗으면 피고인 2는 승용차에 대기해 있다가 피고인 1을 태워서 달아나기로 하는 범행 방법을 진지하게 협의하였으며(공판기록 51), 피고인 1은 피고인 2에게 “다른 사람에게 칼이라도 들이대고 싶다”는 말을 하기도 한 사실, ③ 피고인들은 피고인 2가 후배 이성한 명의로 렌트한 승용차를 타고 돌아다녔으며, 2006. 11. 29. 이전에도 둘이서 차를 타고 범행 대상을 물색하다가 여의치 않아 위 여관으로 돌아간 적이 있었던 사실, ④ 2006. 11. 29.자 특수강도 범행에 사용된 회칼은 피고인 2가 구입하여 승용차 안에 보관하고 있던 것이고, 2006. 11. 28. 밤늦게 위 여관에 잠을 자기 위해 들어갈 때 피고인 1이 승용차 조수석 사물함 안에 있던 회칼을 꺼내 상의 안주머니에 넣어 두었던 사실, ⑤ 피고인 2는 피고인 1이 범행을 할 목적으로 위 회칼을 소지한 채 2006. 11. 29. 새벽녘에 대구 수성구 중동 소재 현대병원 부근으로 가자고 했을 때 별다른 의문 없이 피고인 1과 동행하여 범행 장소 부근으로 갔고, 피고인 1이 피해자 공소외 2로부터 돈을 강취하여 돌아와서 가자고 했을 때도 아무런 의문을 제기하지 않은 채 다시 위 여관으로 운전해 간 사실이 인정된다.

In full view of the above facts of recognition, Defendant 2 and Defendant 2 are established at least implied conspiracys on the fact that property is stolen or taken by taking money or goods from women from women, and Defendant 1 and Defendant 2 had participated in the conduct of taking advantage of such conspiracys. As long as Defendant 2 was found to have participated in the conduct of taking advantage of a woman’s money or goods, even if Defendant 1 did not engage in a direct act or committed a crime against a woman who was not originally identified as the object of the crime, Defendant 2 and Defendant 2 were forced to take advantage of money or goods against women by taking advantage of the means of realizing their own intent, and there is no reason to distinguish between Defendant 1’s act and criminal liability from the case of taking advantage of Defendant 1’s act as the means of realizing their own intent. Accordingly, Defendant 2 is responsible for the establishment of special robbery. Accordingly, Defendant 2’s allegation of mistake of facts or misapprehension of legal principles is without merit.

B. Judgment of misconception of facts or misapprehension of legal principles as to the part concerning the crime of bodily injury by robbery by the Defendants

(1) Whether to recognize the Defendants’ conspiracy relationship

The lower court acknowledged the following circumstances based on evidence duly adopted and investigated: (i) the Defendants parked the vehicle at a place near the scene of the crime and discovered that Nonindicted Party 1 would withdraw cash for one hour; (ii) the victim 1 would turn off the vehicle from the public telephone to her seat; and (iii) the Defendant 1 would have been aware of the fact that the Defendant 1 could not have been aware of the fact that the Defendant 1 could have been aware of the fact that the Defendant 2 could have been aware of the fact that the Defendant 1 could not have been aware of the fact that the Defendant 1 could have been aware of the fact that the Defendant 1 could have been aware of the fact that the Defendant 1 could have taken advantage of the victim’s seat during the commission of the crime by driving the vehicle, and (iv) the Defendant 1 would not have been aware of the fact that the Defendant 2 could have been aware of the fact that the Defendant 1 could have taken advantage of the victim’s seat after leaving the victim’s seat and left the apartment guard, and that the Defendant 1 would not have been aware of the Defendant 1’s contact with the police.

(2) Whether the crime of bodily injury resulting from robbery was established

(A) Summary of the facts charged

Defendants were unable to repay KRW 1,00,000 to their owners when they were to work in a "(title omitted) restaurant located in Nam-gu, Daegu-gu", and were to return to the said owner the vehicle (vehicle number omitted). Defendant 1 would have a woman subject to crime deducted money from the victim's profit. Defendant 2 would have the victim escape from the vehicle while waiting in the said vehicle, and Defendant 2 conspired with Defendant 1 who attempted to commit a crime on December 11, 206, 11:00, Daegu-gu, 366 U.S., Daegu-gu, 00 U.S., 00, 200 U.S., 00 U.S., 20 U.S., 200 U.S., 366 U.S., 00 U.S., 00 U.S., 200 U.S., 00 U.S., 200 U.S., 205.).

(B) Determination as to whether the commission of robbery is recognized

1) Facts of recognition

According to the evidence duly adopted and examined by the court below and the court below, the following facts can be acknowledged in relation to the above facts charged.

A) The Defendants, in the same manner as indicated in the facts charged, were to take money from the female subject to the crime in the manner as indicated in the above facts charged, and the recent occupancy began, and the vehicle was parked in the vicinity of the Geumdong-gu Geumdong-gu, Daegu-gu, which was thought to have many people with limited liability, and had been parked in the vehicle, so that the said vehicle could be seen to have good cash withdrawal with its driver’s seat window, and the victim Nonindicted Party 1 got out of the said cash withdrawal and carried out the withdrawal of money from the said cash withdrawal, and Defendant 1 followed the victim again.

B) Defendant 1, at a distance of 5 to 6 meters away from 400 meters from her place, intended the victim to move to the said bank in the commercial building. Defendant 1 met the victim’s right side by approaching the victim’s left side, and the victim was knife with her hand, who she was her hand away from her body, and the victim went to the bottom of the floor, while her body was returned to her own seat (Evidence 35, trial record 230-223, and Non-Indicted 1’s testimony of Non-Indicted 1). The floor was sleeped as a proxy (Evidence 35, trial record 230-23, and witness 1’s testimony).

C) In addition, Defendant 1’s string, continuing to string off the string of the string, the stringer, and the victim, without leaving the string of the string of the string of the string, and without leaving the string of the string of the string, the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the st

D) Defendant 1’s above action led to a little tear (Evidence No. 11), and the victim fele knee knee fel in the process of towing the floor beyond the floor, and fele knee fele felg was treated in the previous direction, and feld fele gel on the left part of the shoulder that had been treated in the past.

E) As above, there was no assault or threat by Defendant 1, such as the victim or the scambling of the victim in the course of gathering the victim’s bags.

2) Determination

A) A strong theft of property, such as daily flasing, has a case where a victim brupted or injured the victim, and there is time to recognize it as robbery depending on the specific circumstances. However, if such result is likely to occur in the course of the deprivation of possession without the purpose of suppressing the victim’s resistance, it shall be deemed that it is only a larceny (Supreme Court Decision 2003Do2316 Decided July 25, 2003).

B) As above in this case, Defendant 1 followed the victim to take a bank from the victim for the purpose of cutting down the bank, and followed the victim, and led the victim to the extent of 5 meters by getting out of the floor of the slive seat, the victim was unable to take away the bank from the victim. In the process, it is recognized that the victim suffered a slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive slive.

Therefore, the evidence admitted by the court below alone is insufficient to recognize the injury caused by robbery against the Defendants, but the court below found the Defendants guilty of the injury caused by robbery only with the adopted evidence alone. The court below erred by misunderstanding the facts or misunderstanding the legal principles on the injury by robbery. Thus, the defendants' assertion pointing this out is with merit.

(C) Criminal facts recognized without Amendments to Bill of Indictment

However, even if it is impossible to find the Defendants guilty of the crime of bodily injury resulting from robbery as above, the Defendants conspired to put the Defendants in a thief and actually went to the thief, and Defendant 1 was found to have inflicted an injury on the victims during that process (in accordance with Nonindicted 1’s testimony and Nonindicted 1’s statement of opinion as to Nonindicted 3’s testimony, it is difficult to view that the crime of bodily injury resulting from robbery is not “injury” to the extent that it can be naturally cured without need for treatment because the face value of the victim’s face value is extremely minor and minor). In light of the means and method of the act of flafing on the left side of the victim, the degree and degree of the force that the Defendants caused in the process, and the degree of the victim’s side and degree, etc., the facts charged of the bodily injury resulting from robbery include the fact of larceny and injury, and even if so acknowledged, it is difficult to find the criminal facts of larceny and the injury without any changes in indictment.

3. Conclusion

Therefore, the part of the judgment of the court below as to the injury resulting from robbery should be reversed, and since the judgment of the court below imposed a single punishment by treating the remaining crimes as concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed in its entirety pursuant to Article 364 (6) of the Criminal Procedure Act without examining the remaining grounds for appeal by the defendants, and it is again decided as follows.

이 법원이 인정하는 피고인들에 대한 범죄사실 및 증거의 요지는, 원심판시 제2의 가.1)의 ㈎ ⑵항 기재 범죄사실을 아래와 같이 바꾸는 외에는 원심판결의 해당부분과 같으므로, 형사소송법 제369조 에 의하여 이를 그대로 인용한다.

On December 1, 2006, Defendant 1: (a) discovered and accessed the victim Nonindicted Party 1 (Y, 55 years old) who was able to run the above bank over his left arms; (b) the victim was trying to grow up the bank; (c) it was difficult for the victim to set up the bank on 11:00 won in cash, 2, 500 won in cash, 2, 500, 2, 500 won in cash card, 2, 2, 2, 100 won in cash card, 2, 100 days in cash card, and 30 days in cash, and 10, 2000 won in cash, and 30,000 won in cash on the left hand of the victim; and (d) the victim continued to set the bank deposit passbook to the left hand of the victim without holding the bank.

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

A. As to Defendant 1

(a) The point of special robbery: Articles 334(2) and (1), 33, and 30 of the Criminal Act.

(b) Larceny: Articles 329 and 30 (Selection of Imprisonment) of the Criminal Act.

(c) The point of injury: Articles 257(1) and 30 (Selection of Imprisonment) of the Criminal Act.

(4) Injury caused by occupational negligence: Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents and Article 268 of the Criminal Act.

B. As to Defendant 2

(a) The point of special robbery: Articles 334(2) and (1), 33, and 30 of the Criminal Act.

(b) Larceny: Articles 329 and 30 (Selection of Imprisonment) of the Criminal Act.

(c) The point of injury: Articles 257(1) and 30 (Selection of Imprisonment) of the Criminal Act.

(d) Unlicensed driving: Subparagraph 1 of Article 152 and Article 43 of the Road Traffic Act, inclusive.

(5) Fraud: Article 347 (1) of each Criminal Code (Appointment of Imprisonment)

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Articles 38 (1) 2 and 38 (2), and 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment determined by the most severe holding);

(b) Defendant 2: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act. Article 50 (Aggravation of Punishment as to Special Robbery in Judgment with the largest Punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of each Criminal Code (see, e.g., favorable circumstances deemed to be for the reasons of sentencing below)

1. Calculation of days of detention;

Article 57 of the Criminal Code

1. Suspension of execution (as to Defendant 2)

Article 62(1) of the Criminal Act (Consideration of Circumstances, etc. Considering as Grounds for Sentencing below)

1. Confiscation;

Article 48(1)1 of the Criminal Act

1. Return of victims;

Article 333(1) of the Criminal Procedure Act

1. Probation Order (as to Defendant 2)

Article 62-2 of the Criminal Act

The Defendants: (a) took out a restaurant’s prepaid money, without having to think of the payment thereof; (b) took a knife to commit a crime against women; and (c) took money and valuables by threatening women; or (d) taking out money from cash withdrawal; (b) Defendant 1 took out money and valuables by taking advantage of the women following the knife; (c) took out a child of three years of age or age with the negligence in the course of performing duties; and (d) Defendant 2 prevented the victims from committing each of the of the crimes, such as acquiring KRW 7.5 million by fraud from the victims; and (c) cannot be deemed that the nature of the crime in light of the course of each of the crimes of this case, criminal law, and the result of damage, etc.

However, in the lower judgment, the Defendants agreed to the victims of the crime, such as special robbery and larceny, and Defendant 2 agreed to both the victims of the crime in the first instance trial, and Defendant 2 did not have any particular criminal power other than the punishment of the fine, and Defendant 2 is in depth divided, and Defendant 2 has relatively weak degree of participation in the crime, such as Defendant 1’s waiting in the vehicle around the scene of the crime to take aboard and escape from the scene of the crime, and taking into account the Defendants’ age, character and conduct, home environment, and circumstances after the crime, etc., and determine the punishment as ordered in the Disposition.

The summary of the injury resulting from robbery among the facts charged in this case against the Defendants is the same as the above 2-B (2) (a), and the fact that there is no proof of criminal facts as to the above facts charged is the same as the above 2-B (2) (b). Thus, the Defendants should be acquitted. However, as long as the defendants are found guilty of larceny and bodily injury included in the above facts charged, the judgment of innocence is not separately pronounced.

Judges Lee Kang-won (Presiding Judge) (Presiding Judge)