2011Gohap285 (Separation), 201Gohap366 (Consolidation) (Separation)

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

(b) Injury by robbery;

(c) Special robbery;

(b) Lighting-○ (in 1938), and distribution business;

December 22, 2011

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

On February 26, 2009, at around 30:0, 200, ○○○ (one name decoration) and Ha○○○ (one name decoration) used a dub uniform, and entered the house of Kim○○, which operated the gold bank at the Dong-ri, Do-dong, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do, Chungcheongnam-gun, Madon, in the first place, threatening Kim○, Kim○, by threatening Kim○ to a knife Kim○, thereby reducing the key of the ○○○○○○, and leading the crime of forcibly taking approximately KRW 300,000 of a precious metal amounting to 100,000 of a market price from the ○○○.

Ha○○○ and ○○○○○○○○○○ (at the time, 51 years old) a victim, who operated the ○○○○○○○○○○○○○ (at the time, 51 years old) on the 1st century, was found to have been residing in the same building on the 301st floor of the ○○○○○○, which was in the 1st century, with the success of the robbery of the above water law as seen above, and the Defendant and ○○○, by taking away the keys from the ○○○○, proposed to have the ○○○○○ and the Defendant take money and valuables from the ○○○, and prepared the ○○○○○○ by adopting a resolution to commit the crime with the consent of the Defendant and ○○○○, thereby making a prior answer to the ○○○○○-affiliated.

On April 13, 2009, the Defendant, ○○○, and Ha○○○, around the night of April 13, 2009, have gone through a fence of a building adjacent to the building, and opened the 2nd floor through the steel sloping bridge installed at the place to facilitate intrusion, and then opened the crime prevention window of windows facing the small room No. 301 on the 21st day of the same day. The victims returned to the 00th day and got out of the 21st day.

On April 14, 2009, the Defendant and the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ on or around 40 her face, she opened the △△△△△△△△△△△△△△△△△△△△ on a small scale of her son at ○○○, who was her son at the time her son, her son, she humbly and threatened the knife with the knife and the knife the knife of the knife, and her knife the knife the knife of the knife, her knife the knife of the knife, her knife the knife of the knife and the knife the knife of the knife.

The Defendant, ○○○, and Ha○○○○, followed up the measures to cut down cash of 300,000 won in cash, 300,000 won in cash in the wall of the △△△△△, and gold release on bail, which were located on the wall of the ○○○○○○○. However, on the wind that Kim △△△△, the police made a 112 report on the Handphone, which was located on the Handphone, called the Handphone of the △△△△△△△△△△, and the Handphone, carried the Handphone, which is equivalent to 400,000 won in the market value of the △△△△△△△△△,

As a result, the Defendant forcibly taken the key of “cash 300,000 won in cash and gold release” owned by ○○○ in conjunction with ○○○○ and Ha○○○○○, and took money and goods equivalent to KRW 1 million in total, including cash 300,000 won and handphones, etc. equivalent to KRW 400,000,000,000 in the market value of Kim△△△△△△△△△, and puts on both sides of the checks, etc. requiring approximately 3 weeks of medical treatment to △△△△△△△△, respectively, on the face of an internal check, etc. that

Judgment

1. Issues;

On the other hand, the Defendant and Ha○○ alleged that there was no participation in the instant crime, while the Defendant and Ha○○○ alleged that there was no direct evidence that the Defendant participated in the instant crime. The other evidence submitted by the Prosecutor did not directly prove that the Defendant was an accomplice in the instant crime, and ultimately, whether the Defendant’s statement of ○○, a co-offender in the instant crime, is credibility or credibility is the main issue.

2. Determination

A. On February 26, 2009, the ○○○’s credibility1 of the statement was being tried on the charge of robbery in the Geumbuk-gun, Chungcheongnam-do on February 1, 201. On February 1, 2011, the result of the appraisal that the DNA extracted from the scene of the instant crime was consistent with that of the DNA extracted from the place where the instant crime was committed, while leaving the place where the instant crime was committed, the investigation was conducted under suspicion that the Defendant committed the instant crime. Ultimately, the investigation was conducted on the charge of committing the instant crime, and on February 1, 2011.

2. 8. The confession of the instant crime was made by the Defendant and Ha○○ as an accomplice while making a confession of the instant crime.

In 2009, the private ○ stated that the confession of the crime of this case is an intention to clarify all mistakes and reflect in a sense of punishment for many crimes.

In light of other evidence on the background of confession, physical condition, victim’s statement, structure at the scene of the crime, and the course of escape, etc., the confession by the ○○○○, as shown in the facts charged, seems to have considerable credibility, and the part of one of the co-offenders of the crime of this case also seems to have credibility. However, considering the following circumstances, there is no reasonable doubt as to the statement by the ○○○○ as co-offender of the crime of this case. (A) The Defendant’s physical condition and the process of the crime (i) the Defendant’s body condition as co-offenders.

Around April 14, 2009, the date and time of the instant crime, the Defendant was the aged more than 70 years old, and around 200, the Defendant took theft in Japan, and experienced disability, such as the police officers, who met the front shoulder with the gun on the right shoulder, not going up to 70 degrees, and had a significant decline in the ability to commit the instant crime.

In particular, on December 208, 2008, the Defendant: (a) driven 200 months prior to the instant crime; (b) went through a traffic accident; (c) went through an operation to inserting fixed pin; and (d) discharged the Defendant from the Defendant on January 10, 209. Considering that the Defendant’s old and injured parts were duplicative bones, it would not have been easy for the Defendant to perform an excessive act, such as having been able to do so at a different time or high place from the date of the instant crime; (d) having been 2 years prior to the date of the instant crime; and (e) having been 2 years prior to the date of the instant crime, ○○○’s application for the instant crime by using the 2nd floor air-conditioning pipe, etc., which had not been able to use the 2nd floor of the instant bar, which had not been able to use the 2nd floor to prove that ○○○ et al. was on the rooftop.

However, there is a question as to whether the specific criminal process, which used gas pipes in the course of intrusion into the data produced by the investigation agency without the statement of ○○○○○, may appear, and further, there is a circumstance where the evidence was presented as to the circumstances that the instant crime was more easy than the time when the gas pipes were used, such as the fact that there was air conditioners and bank trees adjacent to the wall of ○○○ Construction on the day immediately before the instant trial date, and that there was considerable evidence on the circumstances that the instant crime was more easy than the time when the gas pipes were used. In light of the fact that the evidence, including the statement of ○○○ on the background up to the second floor of ○○ Construction, can be doubtful for credibility.

However, it is reasonable to view that the victims made a statement by agreement that there were bank trees and air conditioners adjacent to the wall made by the public in this court. If there were air conditioners and bank trees immediately adjacent to the wall, it would be hard for the public in ○○, etc. to leave the ○○, etc., without putting a gas pipeline, and then going up to ○○○-type 2nd floor by using air conditioners and bank trees. However, according to the Kim △△△△’s statement among the victims, it is difficult to view that the ○○○○-type gate, which was located the above gate at the time of the prior response and the crime, was completely doubtful on the credibility of the statement in this court. (3) In light of the Defendant’s capacity to conduct the crime in question, considering the Defendant’s physical condition during the crime of this case, it is difficult to view that the Defendant’s act of opening the ○○-type 2nd floor above the gas gate of the neighboring ○○-type 2nd floor without the evidence of this case.

또한 민○○의 진술에 의하면, 피고인과 민○○는 이 사건 범행이 경찰에 발각되어 도주하면서 ○○연립 이웃집의 담장으로 다시 내려와 경찰이 지키고 있는 대문이 아닌 반대편으로 이동하여 유리를 두 장이나 깨어가면서 뛰어 도주하였다는 것인바, 이러한 도주 경로 역시 당시의 피고인에게는 쉽지 않았을 것으로 보인다 . 2 ) 피고인의 가담경위 민○○는 피고인이 이 사건 범행에 가담하게 된 경위에 대해 처음에는 하○○가 김▶▶을 통해 자신에게 이 사건 범행을 제안하여 거절하였다가, 어쩔 수 없는 사정으로 하○○의 제안을 받아들였고, 하○○가 제3자를 공범으로 참여할 것을 제안하였으나 믿음이 가지 않아 거부하였고, 이에 하○○가 피고인을 공범으로 참여시키자고 다시 제안하자 의견이 일치하여 하○○가 피고인에게 이 사건 범행에 가담하여 줄 것을 요청하여 피고인이 이 사건 범행에 가담하게 되었다고 진술하였다 .

In addition, in this court, ○○ again rejected a third party who first proposed by ○○ as an accomplice, and suggested ○○○ himself/herself to have the Defendant participate in the instant crime, and then consented to ○○○○ by proposing that he/she participated in the instant crime. By making a statement to the effect that the Defendant was involved in the instant crime, ○○ reversed his/her statement on the circumstances of the Defendant’s participation. As for the reason why ○○ proposed to have the Defendant participate as an accomplice, ○○ stated to the effect that he/she would have the meaning of engaging in the instant crime by anyone, even though he/she was a criminal.

그러나 민○○의 이 법정에서의 진술과 같이 민○○가 피고인을 이 사건 범행의 공범으로 제안한 것이라면 다음과 같은 의문이 남는다. 피고인은 앞서 본 바와 같이 이 사건 범행 당시 고령에 부상 등으로 강도범행을 하기에 적합한 상태는 아니었을 것인 점, 민○○는 피고인과 한 번도 같이 범행을 한 적이 없는 상황이었고, 이 사건 범행은 적어도 특수강도죄에 해당하여 붙잡힐 경우 높은 처벌이 예상되는데 신체가 완전하지 못한 고령의 피고인을 굳이 공범으로 가담시키는 위험을 민○○가 부담하려 했다는 것은 이례적이고 민○○가 내세우는 이유는 별로 설득력이 없는 점, 또한 민○○는 이 사건 범행 바로 2달 전에 이 사건 범행과 유사한 괴산 강도사건에서 김▶▶ 등과 범행을 성공시켰음에도 김▶▶을 제외한 채 피고인을 새로이 이 사건 범행에 가담시킬 필요성이 있었는지는 의문이며, 민○○는 김▶▶과 하○○가 사이가 나빠 이 사건 범행에는 김▶▶을 가담시킬 수 없었다고 주장하는데 그 둘의 사이가 나빠진 이유에 대해 민○○와 김▶▶의 진술이 엇갈리고, 또한 김▶▶은 이 법정에서 진술하면서 유난히 하○○에 대한 강력한 적대감을 부각시키려고 작정한 듯이 장황하게 반복적으로 진술하는 반면 피고인에게는 우호적인 태도를 취하면서도 피고인에게 결정적으로 불리한 진술들 ( 특히 피고인이 2008. 9. 19. 및 2008. 10. 20. 각 발생한 두 건의 분당 구미동 강도사건에 참여하였다는 것을 하○○로부터, 피고인이 이 사건 범행에 가담하였다는 것을 민○○로부터 각 들은 적이 있다는 진술 ) 은 빼놓지 않아 진술 태도에 의심스러운 사정이 많은 점 등을 고려하면, 피고인을 이 사건 범행에 가담시킨 경위에 대한 민○ ○의 진술은 쉽게 믿기 어렵다 .

3) Defendant ○○○’s false statement-based inducement of Defendant 1’s false statement is currently under suspension of execution of punishment due to a disability caused by the state of having been sentenced to five-year imprisonment due to robbery, etc., or by the labor force force force, and it is difficult to find out reasonable grounds to make a statement to the Defendant unfavorable to the Defendant, and thus, it is not true that Defendant was involved in the instant crime.

However, it is highly probable that the crime of ○○ is committed by the private sector, other than the robbery, and there is considerable possibility that there has yet to be tried in view of the behavior of the crime, and the crime of this case is also committed by the private sector, and since the crime of this case is committed in the course of being tried as the robbery, there is no choice but to have been a confession of the defendant who is expected to be able to have contributed to the investigation agency at the time of handling the case as an accomplice, and there is a possibility that the defendant could be made a false confession as an accomplice in order to conceal his or her accomplice who is closely related to him or her.

나. 권○○, 김▶▶, 최○○ 진술의 신빙성1 ) 권○○ 진술 부분 권○○는 수사기관에서 진술하면서 2008. 9. 19. 및 2008. 10. 20. 성남시 분당구 구미동 소재 ○○타운하우스 9호, 18호에서 각 발생한 강도사건은 피고인이 주도한 범행인데, 2008. 8. 경 피고인으로부터 민○○와 함께 위 범행에 가담할 것을 제안받고 함께 범행을 할 장소를 사전답사까지 하였으나 자신은 실제 범행에는 가담하지 않았으며 그 후 피고인을 만나 위와 같은 범행을 저질렀다는 것을 들었다고 하였고, 이 법정에서도 마찬가지의 취지로 진술하고 있다 .

However, according to the statement made by ○○○ in an investigative agency, the name of four co-offenders in each robbery case, the place of occurrence of the case, the process and method of the crime, circumstances after the crime, etc., and as such, even if considerable time has elapsed, they are well memoryd. Even if the crime was committed on October 20, 2008, the head of the house on the first floor, who intrudes into the second floor and pressures on the second floor, was divided into emergency bells, and even though he knew of the fact, he was sent to ○○○ and tried to commit the robbery, or considered that he was abnormal at the place where he had committed the crime before, and that ○○○ was not aware of the fact at the time of committing the crime, ○○○○ was also aware of the fact that ○○○ police station’s initial statement was made in relation to the robbery of the case, and that he was not aware of the fact that ○○○ in this case.

In light of the above circumstances, it is difficult to readily believe that the part of each statement made by the ○○○○ in this Court and in an investigative agency, which was heard or experienced by the Defendant, and the part in which the said statement was made as if the investigative agency were aware of the pertinent matters, cannot be determined where and where the stamp is.

또한 권○○가 수사기관에서 위와 같이 피고인의 별건 강도범행에 관한 진술을 할 때에는 자신도 특수강도죄, 특정범죄 가중처벌 등에 관한 법률 위반 ( 절도 ) 죄 등으로 재판을 받고 있었는데, 범행 행태로 보아 여죄가 있을 가능성이 높기 때문에 수사기관의 관대한 처분을 기대하고 허위의 진술을 할 가능성 역시 배제할 수 없다 . 2 ) 김▶▶ 진술 부분 김▶▶의 수사기관에서의 진술은 피고인이 다른 공범 3명과 함께 분당에서 발생한 각 강도사건을 저질렀다는 이야기를 피고인으로부터 들었다는 것이 요지이고, 이 법정에서의 진술은 위와 같은 사항 이외에 이 사건 범행에 피고인, 하○○가 가담하였다는 것을 민○○로부터 들었다는 것이 요지이다 .

그러나 분당에서 발생한 각 강도사건에 대한 부분은 권○○와 마찬가지의 이유 및 특히 피고인이 이 사건 부천 강도사건의 공범이 아닌 것으로 밝혀지는 경우 김▶▶ 자신이 가장 강한 혐의를 받게 될 입장에 있는 점에 비추어 그다지 신빙성이 없다. 한편 이 사건 범행에 피고인, 하○○가 가담하였다는 것을 민○○로부터 들었다는 부분은 피고인이 이를 증거로 함에 동의한 바 없고, 원진술자인 민○○가 이 사건의 공판기일에 출석하여 증언하고 있는 이상 증거능력이 없다 .

3) The police statement on the last ○○○○’s most part of the statement was not consented by the Defendant as evidence, and it was not admitted by the ○○○, the original person making the original statement, and thus, inadmissible evidence is not admissible. Rather, the highest ○○ stated in this court to the effect that he did not have any knowledge of the robbery case at all.

C. In an investigative agency and this court, the Defendant asserted that he was friendly with the Defendant on April 2009, and that he was friendly with the Defendant, and around that time, the Defendant asked for a paper to introduce a large amount of money to be robbery to him due to economic difficulties. On April 15, 2009, the following day after the instant case occurred, the Defendant was driving his vehicle on his part, and was parked in the Defendant’s house, and the Defendant was parked in the Defendant’s house at his own seat, making a telephone without parking, and the Defendant was called to the Defendant, and then the Defendant was frightened and frighted on his own part, and operated on his own part, and she was frightened and frighted on his own part. The Defendant made a statement that he was in a nearby parking lot.

However, it is difficult to understand that, on the one hand, Kim Jong-chul stated that he was the position of demanding the defendant to know that he had been unable to commit a crime again on the other hand, and that such person was fluoring upon the defendant's request. In addition, Kim Jong-▽ has a very good memory capacity and Kim Jong-chul is to memory the defendant on April 15, 2009, and the model and model of the defendant's vehicle parked before the defendant's house, but did not make a proper statement while being fluoring on the same day. If the reason for memory by specifying the date when the defendant was fluoring, it was around the day of his birth, but it was difficult to view that the defendant was fluoring the defendant's house at the place where the defendant was parked, not on the one hand, but on the other, on the other because he was fluoring the defendant's house at the place where the defendant was parked. However, it is difficult to view that the reason why the defendant was fluoring the defendant's house.

As such, in addition to the fact that the statement itself is unreasonable, there is little credibility in light of the process of changing the statement and the attitude of the statement in this court.

Furthermore, in light of the fact that, regardless of the existence of any connection with the instant case, Kim Jong-chul appeared as a witness who is well aware of the Defendant’s situation in the investigation process, and solicits the Defendant to make a confession with the police officer in charge of the instant case, and that, in other words, the Defendant attempted to commit robbery at the time and time of the instant crime, the same kind of vehicle like the vehicle that the Defendant used at the time and time of the instant crime was located around the Defendant’s office following the instant crime, and that the Defendant was installed around the Defendant’s house. Considering the Defendant’s statement on the background of the escape that the Defendant had escaped through the glass window after the instant crime, in light of the fact that the Defendant used the Defendant’s wife in a two arms as well as the fact that the Defendant used the Defendant’s wife in a criminal investigation agency, as alleged by the Defendant, he appears to have actively made a statement without credibility due to special circumstances, such as personal friendship with the police officer, etc.

D. Statement of victims

The statement of the victims is the same as three criminals, and one of the criminals has used a suppression in light of the background (the defendant does not use a suppression in light of the background) and does not contain any specific contents in specifying the criminal.

E. Whether the facts charged are proven

피고인이 이 사건 범행에 가담하였다는 민○○의 진술은 앞서 본 바와 같이 그 진실성에 합리적 의심을 지울 수 없고, 권○○, 김▶▶, 최○○, 김▽▽, 피해자들의 진술은 증거능력이 없거나 신빙성이 부족하거나 공소사실과 직접 관련이 없는 내용들이며, 그 밖의 다른 증거들까지 모두 고려하더라도 피고인이 이 사건 범행에 가담하였다 .

The recognition of this issue is not sufficient.

3. Conclusion

Therefore, it is difficult to view that there is no reasonable doubt as to the facts charged in this case. Thus, the facts charged in this case constitute a case where there is no proof of a crime and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of the defendant pursuant to Article 58

It is so decided as per Disposition for the above reasons.

Jurors's verdict

1. In the case of the jury 9 man: Not guilty in full.

Judges of the presiding judge;

Judges Kim Young-jin

Judges Park Jong-ho