(영문) 제주지방법원 2015.8.20.선고 2015노24 판결

1. Of the lower judgment, the part of the lower judgment on the charge of intrusion on and larceny of a building on June 7, 2013, and intrusion on and larceny of a building on July 17, 2013 is reversed.

2. The defendant shall be punished by imprisonment for six months;

3.Provided, That the execution of a sentence shall be suspended for two years from the date this judgment becomes final and conclusive;

4. The defendant shall be ordered to provide community service for 160 hours.

5. Of the facts charged in the instant case, the Prosecutor’s appeal on the following facts is dismissed: (a) entering a police officer among the charges of the instant case on February 2013, 2013, as to the theft of a structure and the original la

Reasons

1. Summary of grounds for appeal;

According to the evidence, the court below acquitted the defendant of the facts charged even though the defendant's building intrusion and theft was recognized. The court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

2. Summary of the facts charged

A. On February 2013, the Defendant: (a) invadedd the F apartment complex of the Victim E-Management in Jeju-si on the entrance that was not corrected in the “G heading”; (b) then, (c) stolen the Defendant, with one round of the original shape of the 700,000 won at the market price, and one round of the 250,000 won at the market price (hereinafter “each of the instant forms table table”, and “each of the instant round of the instant case”).

B. From around 18:00 on June 7, 2013 to around 10:00 of the following day, the Defendant intruded into the above place by an irregular method, and then stolen it by holding one of the HTV 1,55 (hereinafter “HTV”). From around 20:0 on July 17, 2013 to around 09:0 of the following day, the Defendant infringed on the part of the window that was not corrected in the physical training room at the K High School under the Control of the Victim JJ, which was located at that place, at the market price of KRW 790,000,000 (hereinafter “TV”). The Defendant committed a theft of the LTV 1,40,000 (hereinafter “TV”).

3. The judgment of the court below

The lower court found the Defendant not guilty on the grounds that the evidence submitted by the prosecutor alone was insufficient to recognize the instant facts charged on the grounds as delineated below.

A. As to the charge of larceny of the charge No. 1

1) As to the original table:

① In light of the fact that: (a) the actual form of a round belt confirmed as being used by the Defendant on CCTV images is not secured; (b) the statement of E, a person in charge of managing the model voucher of this case, alone, is insufficient to determine the identity of the goods in the video; and (c) the video of E submitted by E does not clearly indicate that the video is identical to the original shape belt cited by the Defendant on CCTV images; and (d) it is difficult to readily readily conclude that the lower table table, such as the above CCTV video or the statement of E, cited by the Defendant on CCTV images, is the same as the stolen goods in the model hybrid of this case.

2) There is no direct evidence to prove that the Plaintiff possessed a stolen cat in its original form in relation to the instant model carpets.

B. As to the charge of the intrusion of a port structure and the theft of the HTV of this case

① The Defendant’s act before and after the instant case and the act of not moving the HTV and the instant HTV to another place is difficult to view it as the act of the person who stolen and stores each of the instant TV, etc. ( ② there is no evidence to prove that the Defendant was a witness of another person to keep the password or to find out the password of the Defendant, and ③ there is no objective evidence to identify the offender on the ground that the Defendant did not take any measures such as fingerprint identification of the entrance, and ④ there is no possibility that the Defendant acquired the HTV from a third party due to other circumstances.

D. As to facts charged; C. Violation of structure and theft of the LTV of this case

① It is insufficient to find the Defendant’s fingerprints on the outside of the windows of K School alone. ② The Defendant’s act before and after the instant case and the act of not moving each of the instant TV to another place is difficult to view it as the act committed by the person who stolen and stored the instant TV, etc.

4. Judgment of the court below

A. Legal doctrine

In a criminal trial, the conviction shall be based on evidence with probative value sufficient to cause a judge to have the truth that the facts charged are true beyond a reasonable doubt. If there is no evidence to form such a conviction, even if there is no doubt as to the defendant's conviction, it shall be determined in the interests of the defendant. However, the reasonable doubt here refers not to all questions and correspondences, but to the reasonable doubt as to the probability of a fact that is inconsistent with the facts charged in accordance with logical and empirical rules. Meanwhile, the judge's conviction is formed by indirect evidence unless it is necessarily formed by direct evidence, but it does not violate the empirical rules and logical rules (see, e.g., Supreme Court Decision 2010Do2925, May 13, 2010).

B. Determination as to each of the theft of TV of this case and each of the theft of each of the instant buildings, dated June 7, 2013 and July 17, 2013

(1) The probative value of indirect evidence in this part of the facts charged should be basically proved by the prosecutor. However, as mentioned earlier, it can be proved by indirect evidence. However, if there still exists a reasonable doubt that the defendant did not commit a theft even if there are some doubts between the defendant's assertion, the proof is not sufficient.

However, as seen below, the contents of the Defendant’s lawsuit on this part are seriously against empirical rules, and logically, it is difficult to accept the Defendant’s appeal, as well as difficult to find the consistency of the statement.

Rather, according to the defendant's change of prosecution, if the defendant did not steals, only an indirect fact that cannot be otherwise explained can be proven. Thus, this part of the facts charged does not have reasonable room for deliberation, and there is proof of the crime.

(2) Regarding the intrusion of a building on June 7, 2013 and the theft of the instant HTV, the instant HTV is deemed as stolen TV in light of the fact that, as acknowledged by the evidence duly adopted by the lower court, its model number is consistent and its specific accessories are equally damaged, as so determined, in view of the fact that the instant HTV was used again for a part of the innocence under the lawful adoption of the lower court.

① However, at the time of the prosecutorial investigation, the Defendant stated that he purchased the particulars of the acquisition at the time of the police investigation, around April 2013, and again, the Defendant stated that 350,000 won was paid in cash to those who were residing in F apartment from May to June 6, 2013 and were purchased.

However, it is very meaningful that the instant HTV purchased new products at the time up to 3.6 million won (the receipt submitted by the E was purchased at the time of March 12, 2013). However, considering that it is serious, it is very meaningful to purchase the said new products at the price within the limit of 1/10 of the market price even if it is considered that it is in importance, and 6. 6. The Defendant occupied F apartment in early March 2013 and had no household between directors until July 2013. The Defendant was specified as a director who was living in F apartment, and the Defendant was also asked the Defendant from the access road to the school only when the Defendant leaves the school. However, it also goes against the rule of experience.

Therefore, in light of such facts, the Defendant’s statement on the process of acquiring HTV of this case is difficult to be considered as the truth.

② Also, on June 9, 2013, the date and time of the theft of the instant HTV, the Defendant purchased the string and 3D strings from June 7, 2013 to June 8, 2013, which is the date and time of the theft of the instant HTV. This appears to have been intended to install and use the instant HTV, and it is inconsistent with the Defendant’s assertion that the Defendant acquired the instant HTV for the purpose of decomposing and assembling the said TV under the hobby, and thus, it is also supplemental to the effect that the Defendant stolen the instant HTV.

③ On September 28, 2013, the Defendant consented to a witness search at the police station on September 28, 2013, and during that process, the Defendant found the instant LTV and HTV. However, the Defendant’s act cannot be readily concluded that the Defendant’s act of searching the said TV in his/her residence alone cannot be deemed as the act of the stolen person, even if there were the said TV.

④ In addition, even if there are circumstances in which the theft of HTV of this case took place without damaging the password input device installed on the entrance, such circumstance does not necessarily mean that it is reasonable to deny the theft only for the Defendant, on the grounds that not only the Defendant but also outside persons who are not related to model hybrids are obstructed by the theft act. The same applies to cases where the Defendant does not reasonably explain what circumstances the password of the correction device was put on by any other group.

(3) Regarding the intrusion of the instant LTV on July 17, 2013 and theft of the instant LTV, the instant LTV, as duly admitted by the evidence duly admitted by the lower court, is also deemed as stolen TV in the physical training room of the KA in light of the following: (a) the model number is consistent and the back plastic part is consistent with the studio, as duly admitted by the lower court.

However, with respect to the process of acquisition at the time of the prosecution investigation on December 17, 2013, the Defendant stated that the instant LTV was brought to the police at the time of the police investigation with the permission from the person in charge of the management of the K School Expenses at the time of the police investigation, and that it was also against the request from the head of the administrative office P to obtain the permission from the school, but such statement was just stated as such, and the instant LTV was stated that it was caused to be abandoned in the clean in the apartment site located in the Defendant’s residence on July 18, 2013.

However, although the Defendant’s acquisition of the instant LTV was only one way, it is difficult for the Defendant to easily believe the Defendant’s statement by making a false statement to the effect that it was brought about the first time with the permission from P (which, up to the Defendant’s request that the said P would bring about the instant LTV to the Defendant, and that he would make a false statement to the investigation agency), and (vi) the instant LTV was fixed at a considerable level in the physical training room, but it was difficult for the Defendant, not the Defendant, to remove it from the back of the instant LTV due to the fact that other thief, other than the Defendant, intrudes with the physical training room, entrance or windows, and thus, it was difficult to easily see that it was difficult for the Defendant to throw it out in the apartment house as it was without bringing it up.

② In addition, around July 18, 2013, theft was discovered and the fingerprints taken from the window of the physical fitness center on July 25, 2013 coincide with the defendant. In the situation where the form of other intrusion cannot be accurately known, it is meaningful that only the fingerprints of the defendant remains.

③ As to the Defendant’s consent to the instant HTV in the course of investigation, the part on the determination of the said HTV as mentioned above is also same. If the Defendant’s objection to the process of acquiring two of the instant LTV and HTV does not appear to have been properly explained, the content of the Defendant’s defense would be difficult to believe.

(4) The theory of lawsuit

Therefore, the facts charged regarding the intrusion of each building of June 7, 2013 and July 17, 2013 and the theft of each of the instant TV in this case are proved to prove the crime.

C. As to the judgment on the theft of a structure under Paragraph (a) of the facts charged, the article itself does not exist as evidence, and as to E’s CCTV screen, it stated that the original test is in its original test, which is held by the defendant on the CCTV screen of this case. However, its image is unclear, and there is no specific sign to recognize that the article is not of the same kind, but of the same kind of article, and thus, the above E’s statement alone cannot be affirmed as to the same effect that the test is identical with the article stolen in a video.

Although it is difficult to easily believe that the Defendant’s statement about this part is made, in particular, at the S Hospital, hospitalized at around 09:00 on November 4, 2013, the S Hospital: (a) opened the sloter with a physical uniform on the patient’s clothes, and purchased in cash a round and a round camera in V store, and stored the Defendant’s vehicle in the Defendant’s vehicle. On November 6, 2013, the following day after the suspect was examined, the police officer was required to confirm a round table, etc., which was being kept by the police officer in charge, which was in custody, and the police officer showed to the police officer a round and a round in its original form on the back seat of the Defendant’s vehicle that was parked in the S Hospital parking lot, the Defendant’s act is also strong to doubt that the Defendant’s act is not a theft of a round of the original shape and a round of a round of the vehicle.

However, despite such circumstances, there is no direct evidence to prove the fact that the defendant possessed a stolen original camera in the model house of this case. Furthermore, there is no direct evidence to prove the fact that the defendant possessed a stolen original camera in the model house of this case.

Therefore, it is difficult to view that this part of the facts charged was proven to the extent that it is beyond the reasonable doubt of the judge, so the judgment of the court below which acquitted the defendant is justifiable.

5. Conclusion

Therefore, the prosecutor's appeal on the infringement of a building or theft of June 7, 2013 and the infringement of a building or larceny of July 17, 2013 is with merit, and the judgment below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the prosecutor's appeal on the infringement of a building or the theft of a original part is determined as follows, and the prosecutor's appeal on February 2013 against the infringement of a building or the theft of a original part is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

[Judgment of the court below which re-written the part not guilty (as to the intrusion of a building and theft on June 7, 2013, and the infringement of a building and theft on July 17, 2013)]

Criminal facts

As above 2-b. (c) the same shall apply.

Summary of Evidence

1. Partial statement of the defendant;

1. Each testimony of witness E, J,O, and S in the original judgment;

1. Some of the protocol concerning the examination of the suspect against the defendant;

1. Statement by the police about E and P;

1. A written statement of E and J;

1. On-site photographs and photographs of each damaged article;

1. Records of seizure and the list of seizure;

1. Each report on investigation;

1. Application of Acts and subordinate statutes requesting appraisal of field questions;

1. Article applicable to criminal facts;

Articles 329 and 319(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution: Article 62 (1) of the Criminal Act;

1. Order of community service: According to the sentencing guidelines for sentencing under Article 62-2(1) of the Criminal Act, the defendant's crime is a larceny for general property, and the scope of sentencing is one to two years (class 4 theft and basic area).

Although the Defendant, as a middle school social teacher, is in a position to be more exemplary to students, in light of the fact that the Defendant committed the theft of this case and denies and does not reflect the fact of the crime, and that the Defendant appears to have instigated a false statement or attempted to destroy evidence in order to conceal his/her own crime and to deceive the investigation agency, and that there is no good condition after the crime is committed, the Defendant’s crime of this case is more serious.

However, the punishment shall be determined by comprehensively taking account of the following circumstances: (a) the Defendant was a primary offender with no criminal history; (b) the TV of this case appears to have been returned to each victim; and (c) the Defendant’s age, character and conduct, environment, motive and circumstances leading to the instant crime; and (d) the sentencing conditions specified in the pleadings of this case, including the circumstances before