(영문) 서울중앙지방법원 2017.1.25. 선고 2016고합918 판결

Defendant shall be punished by imprisonment with prison labor for up to two years and six months. The charge of fraud among the facts charged in the instant case shall be acquitted.

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

Reasons

Criminal Crime Private Exemplary Criminal Power

On July 17, 2015, the Defendant was sentenced to ten months of imprisonment for fraud at the Seoul Central District Court (Seoul Central District Court) and completed the execution of the sentence on April 2, 2016.

【Criminal Facts】

피고인은 2016. 8. 31. 05:05경 서울 관악구 C에 있는 'D' 단란주점 에서 전날 22:30경부터 약 6시간 30분 동안 14만 원 상당의 맥주 25병과 과일안주 등을 먹고 노래를 부르는 등 재화와 용역을 제공받은 다음, 위 단란주점 업주인 피해자 E(여, 57세)이 영업이 끝났으니 계산을 해달라고 말하자, 피해자로 하여금 그 대금의 지급을 포기하도록 할 목적으로 미리 휴대하고 있던 흉기인 칼(칼날길이 약 10㎝)을 꺼내들고 마치 피해자의 가슴 부분을 찌를 듯이 겨누며 "꼼짝마!"라고 말하여 이에 겁을 먹은 피해자를 반항하지 못하게 억압한 후 그대로 도망하였다. 이로써 피고인은 흉기로 피해자를 협박하여 피해자의 저항을 억압한 후 피해자로 하여금 술값 14만 원의 청구를 단념하도록 하여 같은 금액 상당의 재산상 이익을 강취하였다.

A summary of the steam

1. Defendant's legal statement;

1. Statement to E by the police;

1. E statements;

1. Receipts, 112 reported statements, reports on results of field identification, site photographs, CCTV images, fingerprints assessment results, investigation reports (the results of confirmation of the suspect's possession card, and execution of warrant for search, seizure and verification);

1. Previous convictions in judgment: The application of Acts and subordinate statutes to inquiry reports and personal confinement status;

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

Articles 334(2) and (1), and 333 of the Criminal Act

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Discretionary mitigation;

Determination on the assertion of the defendant and his/her defense counsel under Articles 53 and 55(1)3 of the Criminal Act (the favorable circumstances of the reasons for sentencing at the time of sale)

The defendant and his defense counsel asserted that the defendant was in a state of mental and physical disability due to alcohol ozone or shock disorder at the time of the crime of this case.

According to the records, since the defendant was diagnosed with respect to alcohol and shock disorder on January 27, 2003, he/she had been hospitalized and treated continuously, and on May 11, 2012, he/she had the record of being sentenced to medical treatment and custody on the grounds of alcohol addiction and shock disorder, and at the time of committing the instant crime, he/she had the record of drinking.

However, in light of the following circumstances, means, and the defendant's behavior before and after the crime of this case, it is difficult to view that the defendant had weak ability to discern things or make decisions at the time of the crime of this case. The above assertion by the defendant and the defense counsel is rejected.

① The Defendant, immediately before committing the instant crime, presented a credit card upon the request of the victim to calculate the liquor value, and did not settle the account with the phrase “the credit card whose use was suspended,” and presented another credit card, but committed the instant crime.

The Defendant, at the investigation stage and in this court, has made a statement replacing the process of the instant crime.

③ As a result of the Defendant’s mental appraisal, it was presumed that no mental disorder, other than alcohol alcohol, was found at the time of the instant crime, and criminal responsibility was deemed to have been sound.

1. The grounds for sentencing: Imprisonment with prison labor for not less than two years and not more than six months but not more than twenty-five years;

2. Scope of recommendations according to the sentencing criteria;

[Scope of Recommendation] General Criteria> Class 2 (Special Robbery) Reduction Area (2 year to June 4 year)

[Special Mitigation] Ad hoc Inspector

3. Determination of sentence: Imprisonment with prison labor for a period of two years and six months;

In light of the criminal implements, behavior patterns, etc., such as threatening the victim with a deadly weapon and attempting to keep him/her in mind, the criminal law has been interviewed and the quality of the crime is not good. In addition, the defendant committed the instant crime again within three years after he/she was discharged from his/her prison office due to an integrative type of fraud. Punishment corresponding to the criminal liability of the defendant is inevitable.

However, the defendant divided his mistake and recognized the crime of this case. The defendant seems to have caused the crime of this case by contingency. The amount of damage is relatively minor and the victim does not want the punishment of the defendant. This is the circumstances favorable to the defendant.

In addition, all kinds of sentencing shown in the pleadings of the instant case, such as the character, conduct, environment, and circumstances after the crime of the Defendant. The punishment against the Defendant shall be determined in consideration of the two

The acquittal portion

1. Summary of the facts charged

At around 04:30 on July 19, 2016, the Defendant: (a) committed an act as if he would pay the drinking value from “H operated by the victim G in Gwanak-gu, Seoul Special Metropolitan City F; and (b) ordered the victim to give an order to the owner of the alcoholic beverages and the owner of the alcoholic beverages. However, the Defendant did not have any intent or ability to pay the liquor even

The Defendant, as such, by deceiving the victim, received from the victim the alcohol and the alcohol equivalent to the market value of 30,000 won.

2. Determination

A. According to the records, the fact that the defendant did not pay the drinking value at H is recognized, but in light of the following circumstances, the evidence submitted by the prosecutor alone is insufficient to deem that the defendant ordered the disposition without the intention or ability to pay the drinking value from the beginning, and there is no other evidence.

1) The Defendant stated that a female 1 made a drinking value with the drinking value, and together issued an order for drinking and drinking to the above main point, and that the female fins tobacco, and that it was impossible for the Defendant to pay the drinking value with the wind as it is, and that the Defendant did not have any intent or ability to pay the drinking value from the beginning.

2) The Defendant’s above change is consistent with objective evidence. According to CCTV installed at the above main point, around 04:04 on July 19, 2016, it is confirmed that around 04:09 on the same day as the day when one female suffering from the instant main point is moving out of the said main point. The victim also appeared to be out of the Defendant’s attempt to take out of the police around 04:09. The Defendant, at the police, issued an order with the Defendant’s only one female suffering from the instant crypusus and the crypusus and ordered the said female to go out of the tobacco smoking, and then the said female went out of the said main point. In addition, in light of the fact that the Defendant notified the victim of his contact address and found the said female while leaving the said main point, it is difficult to readily conclude that the Defendant actually paid the said female alcoholic beverages from the beginning without paying the price of the said female alcoholic beverage.

B. Thus, the above facts charged against the defendant constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

will give public notice of the summary of the judgment.

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