If the owner or possessor of a property is different from the owner or possessor, the requirements for the application of the relative precedent.

The provisions concerning relative funeral shall apply only to cases where the owner of property and the possessor are different from each other, and in cases where there is a relationship of kinship between the offender such as theft and the possessor and the possessor, it shall not apply.

Article 344 of the Criminal Act

November 11, 1980, 80Do131 decided Nov. 11, 1980 (Article 344(6) of the Criminal Act, No. 647, 1379 of the Criminal Act)

Defendant

Defendant

Suwon District Court (83Gohap102)

The defendant's appeal is dismissed.

One hundred days from the number of days of confinement before the judgment is rendered shall be included in the sentence of the original judgment.

The gist of the grounds for appeal by the defendant and his state appointed defense counsel is that the theft cash of the second crime was stolen by the defendant who was in custody of the non-indicted living together with the defendant. Therefore, the victim of the crime in question shall be deemed the non-indicted. Therefore, if the defendant who is in a relationship with the defendant living together with the defendant is exempted from punishment or is not living together pursuant to the provisions of Article 328 (1) of the Criminal Act applied mutatis mutandis pursuant to Article 344 of the same Act, there is no complaint under Article 328 (2) of the same Act, and thus, if the defendant is not living together, it cannot be punished for the defendant. However, the court below found the defendant guilty of the charges in this point, which is erroneous in the misapprehension of legal principles as to the mistake of facts affecting the conclusion of the judgment, and the second sentence is unreasonable

When comprehensively considering the various evidences which have been duly examined by the court below, it can be recognized that the non-indicted, who is the mother of the court below, has stolen the above cash which was kept in his custody upon the request of the non-indicted who was in his own possession of the adjoining person. According to the above facts, it is like the theory of lawsuit that the non-indicted, who is the possessor of the above cash, becomes the victim of larceny, but the crime of larceny is established due to the deprivation of possession of the property. However, since the possession of the property is infringed by the deprivation of possession of the property, the owner shall be deemed to be the victim of larceny. Therefore, the court below should have expressed only the owner as the victim and cannot be said to be erroneous, and the provisions on the precedent of relatives as argued in the arguments are applied only when a relationship exists between the thief, owner and the possessor of the property, and if there is no relationship between the non-indicted, who is the victim and the possessor of the stolen person, as in this case, the court below's decision of punishment is not applied.

Therefore, since the appeal by the defendant is without merit, it shall be dismissed in accordance with Article 364(4) of the Criminal Procedure Act, and one hundred days out of the number of days of confinement before the pronouncement of the judgment shall be included in the sentence of the judgment below in accordance with Article 57 of the Criminal Act

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

Judges Nohn-Du (Presiding Judge)