Requirements for establishing special larceny, which is a joint criminal

In order to be established as a special larceny as a joint crime under the latter part of Article 331(2) of the Criminal Code, it is required that there is a sharing of public offering as a subjective requirement and an action as an objective requirement, and there is a cooperative relationship at time or place in the execution act.

Article 331(2) of the Criminal Act

Supreme Court Decision 73Do480 Decided May 22, 1973, 84Do2956 Decided March 26, 1985, Supreme Court Decision 88Do1197 Decided September 13, 198

Defendant

Prosecutor

Seoul High Court Decision 88No12 delivered on March 25, 1988

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal

In order to establish a special larceny as a so-called joint crime where two or more persons of the latter part of Article 331(2) of the Criminal Act jointly commit a theft of another's property, there should be a sharing of an act of conduct as a subjective element and an objective requirement, and there should be a cooperative relationship between the parties at a time and at a place of time (see Supreme Court Decision 73Do480, May 22, 1973; Supreme Court Decision 84Do2956, Mar. 26, 1985; 88Do1197, Sept. 13, 198).

Examining the confirmation relation of the judgment of the court of first instance maintained by the court below, the defendant, along with the co-defendant 1 and 2 of the court below's decision, committed an act of cutting down to the master's warehouse located in 616 Male-dong, Dongjak-gu, Seoul Metropolitan Government, the defendant agreed with the co-defendant 1 and 2 of the court below, but the defendant did not appear at the place of promise but at the place of promise at the time when punishment was made so that the defendant did not commit a theft, and the defendant 1 and the co-defendant 1 of the court below decided to leave the place of promise to lead the defendant to commit an act of cutting down approximately 10,000 square meters by impairing the warehouse before the warehouse, and therefore, the co-defendant 2 of the court below's decision cannot be established as a joint principal offender of special larceny, and it is evident that the other co-defendants of the court below's decision excluded from the relation before the other co-offenders reached the agreement.

There is no error in the misapprehension of legal principles as to the judgment of the court which acquitted the defendant.

In addition, the judgment of the court below is just, and there is no lack of evidence to acknowledge the criminal intent of the larceny teacher, and there is no error in the incomplete deliberation or in violation of the rules of evidence.

The issue is groundless.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-sung (Presiding Justice)