[1] The principal agent of the crime of quasi-Robbery (=a thief)

[2] The case holding that the court below erred by misapprehending the legal principles in applying the crime of robbery, even though the criminal facts acknowledged by the court below do not include the fact that the defendant started the commission of larceny but did not include the fact that the court below applied the crime of robbery, in case where the court below applied the crime of robbery which acknowledged the criminal facts that "the defendant acquired property benefits by avoiding the payment of the drinking value and assault Gap" as the criminal facts that "the defendant abused Gap by avoiding the payment of the drinking value."

[1] Article 335 of the Criminal Code provides that a quasi-Robbery may be established in cases where a thief uses violence or intimidation in order to resist recovery of stolen property, to escape arrest or to destroy a trace of the crime. Thus, the subject of quasi-Robbery is a thief, and the subject of the crime of larceny is a thief, and the object of larceny is a property

[2] The case holding that the court below erred in the misapprehension of legal principles as to the principal agent of the quasi-Robbery in the judgment below which found the defendant guilty by applying the quasi-Robbery crime, in a case where the crime charged was applied by recognizing that "the defendant acquired property benefits by avoiding the payment of the drinking value that the defendant should pay to Gap and assaulted Gap," although the criminal facts acknowledged by the court below do not include the content that the defendant started the commission of larceny in itself, the court below found the defendant guilty by applying the quasi-Robbery crime, even though he did not include the content that he started the commission of larceny.

[1] Article 335 of the Criminal Act / [2] Articles 335 and 337 of the Criminal Act

[1] Supreme Court Decision 2003Do4417 decided Oct. 24, 2003 (Gong2003Ha, 2285)

Defendant

Defendant

Attorney Park Jung-young

Seoul High Court Decision 2013No3133 decided February 7, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The facts charged and the judgment of the court below

A. The facts charged of the instant case reveals that “the Defendant, at the drinking house operated by the Nonindicted Party on August 3, 2013, in order to avoid paying the drinking value of 2.60,000 won by inducing and assaulting the victim who was demanded by the victim to pay the drinking value, and inducing the victim to pay the drinking value, and then inducing the victim to the alley behind the thring of the thring apartment in the vicinity of the victim, with both hand, tightly cutting down the victim’s shoulder by tightly cutting down it over the floor, cutting it over the floor, cutting the victim’s neck, cutting down the victim’s neck or cutting down the victim’s neck with the victim’s hand, intending to go against the victim’s face, etc., so, the Defendant escaped, as it is, so that the payment of the drinking value of KRW 2.60,00,000,000 to the victim, thereby gaining financial benefits equivalent to the same amount to the victim and harming both sidess, etc. requiring approximately 2 weeks treatment.

B. As to this, the lower court found the victim guilty of the injury resulting from robbery by deeming that the injury does not constitute injury in the crime of robbery, and rendered a judgment of not guilty of the crime of robbery, on the ground that the identity of the facts charged is recognized and the defendant does not cause any substantial disadvantage to the defendant’s right of defense, thereby changing the last part of the facts charged to “the defendant exempted the victim from paying the amount of KRW 260,000,000 which should be paid to the victim, thereby obtaining economic benefits equivalent to

2. Judgment of the Supreme Court

A. Article 335 of the Criminal Act provides that a quasi-Robbery may be established when a thief uses violence or intimidation in order to resist recovery of stolen property, to escape arrest or to destroy a trace of the crime. Therefore, the subject of quasi-Robbery is a thief and is the object of larceny.

B. The criminal facts acknowledged by the court below are that the defendant exempted the payment of the drinking value that the defendant should pay to the victim, thereby acquiring pecuniary benefits and assaulting the victim. It does not include the fact that the defendant commenced the larceny, and there is no reason to acknowledge it even if examining the record.

Nevertheless, the court below found the defendant guilty by applying the quasi-Robbery to the above charged facts, which is erroneous in the misapprehension of legal principles as to the subject of quasi-Robbery.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)