201Jaly 784 Defashion of night buildings

Defendant

Head of the Gu, Seogjin-gu, Kumjin-gu

Reference domicile, Go Chang-gun, Go Chang-gun, Go Chang-gu

Kim Won-jin

Law Firm Honam General Law Office, Attorneys Yellow-do et al.

August 8, 2011

A defendant shall be punished by imprisonment for one year.

Facts of crime

On August 31, 2007, the Defendant was released on March 30, 2009 and was released on April 17, 2009 at the Jeonju District Court sentenced two years of imprisonment for night larceny and larceny, and the period of parole expired.

피고인은 2011 . 3 . 21 . 22 : 00경 전주시 완산구 효자동 1가 393에 있는 피해자 甲이 운영하는 청춘가맥에 이르러 소지하고 있던 열쇠로 출입문을 열고 안으로 침입하여 그 곳 내부에 설치되어 있는 피해자 소유인 시가 2 , 550 , 000원 상당의 엡손 프로젝터 1개 , 시가 735 , 000원 상당의 전동스크린 1개 , 시가 460 , 000원 상당의 엠프 1개 , 시가 370 , 000 원 상당의 스피커 2개 등 시가 합계 4 , 115 , 000원 상당의 재물을 뜯어내어 가 절취하였 다 .

Summary of Evidence

1. The defendant's partial statement in court;

1. Each legal statement of the witness A and B

1 . 丙 , 丁에 대한 각 경찰진술조서

Judgment on the argument of the defendant and defense counsel

1. The defendant and his defense counsel's assertion

The defendant and his defense counsel asserted that since the defendant and B are engaged in the Cheongscam, the above store was under the joint possession of the defendant and B at the time of the entry of the above crime room, and as long as the above damage was jointly possessed by the defendant and B, the defendant's act does not meet the requirements for the composition of night building intrusion and theft.

2. Facts of recognition;

In full view of each of the above evidence and evidence, witness A, B's partial statement, police statement of C with respect to police statement, real estate rental contract, B's written statement, and B's written statement, the following circumstances are recognized:

A. During the original operation of B in the name of C, B transferred its business to B on November 201, 2010, and the details of the business transfer agreement are as follows.

1) Payment for the transfer of business: 45 million won (including 5 million won by succession of deposit);

2) Of the proceeds, KRW 20 million out of the proceeds shall be paid with a business loan, and the remainder of KRW 20 million shall be paid after two to three months while operating the Cheongscam.

3) Since a transfer of business was made in the form of credit, B shall prepare a loan certificate of KRW 50,000,000 as security for the payment of the above amount and deliver it to A.

B. Accordingly, on November 14, 2010, B entered into a new lease agreement with the owner of the building D and the lease deposit of KRW 10 million (including KRW 5 million increase of the lease deposit), monthly rent of KRW 1 million, and the period from November 20, 2010 to December 20, 2010, and B handed over the possession and internal collection of the above Cheongscam to B.

C. At the time of the lease, A was the key of the Cheongscam and three keys of the Cheongscam and two former liquor suppliers. At the time of the lease, B was the key of the former liquor supplier, and B was the key of the former liquor supplier, and B was the key of the former liquor supplier directly contact the former liquor supplier.

D. B commenced business on December 15, 2010, Cheongscam, and Mascam A and Mascam A were working at the Cheongscam and worked at the Mascam.

E. B is unable to pay the remainder by paying only a part of the first price of KRW 20 million due to B’s failure to obtain a loan from A, and the remainder is also sealed, such as rent and public charges.

Since January 5, 2011, when a bond was used rapidly, but the bond was received from A and bond company due to the failure to pay it, the company did not work in Cheongsckercer from around January 5, 201. During that process, A urged the defendant to pay the transfer price or did not demand the defendant to pay the transfer price on behalf of B.

F. B was unable to pay B the transfer proceeds of Cheongscam to B on January 201, 201. The key was returned while returning B’s key.

G. During the period in which B does not work at work, the Defendant continued to engage in the business with A while continuing to work with B, and ceased to work on February 23, 2011.

H. B transferred the business of the Cheongscam to A on March 2, 2011, and B told the Defendant to clean and organize the Cheongscam to transfer the Cheongscam to another person even around that time. Moreover, after completing the reorganization of the Cheongscam, B attempted to bring about the computer, the Cheongscam, and the hot wind, etc. brought by the Defendant.

(j) The victims of this case were in the Cheongscam from the time when A’s business was operated.

3. Determination

According to the above facts, A and B agreed to take over the business of Cheongscam on March 2, 201, to return them to B who is unlikely to discharge their obligations under the business transfer contract. The substance of this agreement is to be the cancellation of the agreement on the business transfer contract. Since it is the restoration of the rescission, the management and possession of Cheongscam belongs to A after March 2, 201, and the act of taking the things under its management belongs to A, which constitutes the elements of the larceny of night buildings.

In this regard, the defense counsel argues that the cancellation of a business transfer contract made only by agreement between A and B when the defendant and B were in partnership relations shall not extend to the defendant. However, according to the above recognition room, only the parties to the business transfer contract were both A and B, and no such acts were made at the time of the contract. There is no special circumstance to deem that the defendant, instead of B, had shown the attitude to perform the obligations under the business transfer contract, the defendant cannot be regarded as the party to the business transfer contract, and the possession of the above Manac is deemed to have returned to A due to the restoration to the original state following the cancellation of the agreement between A and B. Even if there was an agreement between B and the defendant, so long as the parties to the business transfer contract are both B and B, it cannot be viewed that the power to cancel by agreement between A and B is deprived. Thus, the above argument is not accepted.

[A. Even if the defendant assumes that he is a party to the above business transfer contract, as seen above, A and B had the right to cancel the above business transfer contract because B and the defendant had been unable to perform the obligation under the above business transfer contract, and Eul had already acquired the right to cancel the above business transfer contract. The defendant also has the right to cancel the contract at the time of the cancellation of the above agreement. The above declaration of intention of A is the declaration of intention of cancellation of the above business transfer contract (the defendant brought a part of his goods without any objection, even if the cancellation of the agreement does not extend to the defendant on March 2, 2011, and even if the cancellation of the agreement does not affect the conclusion of the above business transfer contract, as long as A already acquired the unilateral right to cancel and delivered to A and B, the contract is legally effective regardless of whether A and B had the right to cancel the agreement.

A defense counsel asserts that the defendant's key was lawfully possessed by the defendant, and thus the defendant's act does not constitute an intrusion. However, as seen above, once the contract for the transfer of business was lawfully rescinded around February 23, 2011, the defendant's key was used only for lawful entry, such as the case where the defendant's right to possess the first key was legitimate and the entry was allowed in the past in the Cheongscam. Even if the defendant used the key in order to remove the object in the Cheongscam after the suspension of business last one month, it is against the explicit or presumed intention of the manager of Cheongscam, and thus, it constitutes an intrusion against the defendant's explicit or presumed intent. Thus, if the defendant used the key in order to remove the object in the Cheongscam after the suspension of business, it is not accepted as the defendant's right to use the key in the above Cheongscam and thus, it constitutes an intrusion against the defendant's explicit or presumed intent.

The defense counsel argued that the defendant would return possession when he pays 5 million won to A, and that the above damage belongs to the co-ownership of the defendant and B unless the settlement of the partnership relationship pursuant to the above sub-paragraph of the above sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph of the sub-paragraph.

As long as the ownership of the damaged article was returned to A according to the uniform, it cannot be viewed as belonging to the joint ownership of the defendant and B. Accordingly, the above assertion is rejected.

[A. Even if the above damaged articles were not restored to A, and were left under the joint ownership of B and the defendant under the agreement, theft is established in the event that the articles belonging to joint possession were taken independently without the presence of other joint possessors and moved under their control by excluding the possession of other joint possessors (see Supreme Court Decisions 81Do2956, Apr. 27, 1982; 94Do2076, Oct. 12, 1995; 94Do2076, Oct. 12, 1995; Rara does not affect that the defendant's act constitutes the element of larceny.

In this regard, although the defense counsel argued that B did not work for a long period of time and the company's property was removed from the partnership's business relationship and changed to the sole possession of the defendant, even if there is the defense of the counsel, B's main business relationship is a partnership with B's main business relationship with B's main business relationship with the defendant, and the defendant does not work for the defendant. The reason why B's failure to work for a business transfer contract with B's demand, not for the defendant, is that B's duty to work for about 50 days due to B's failure to meet the obligations under the business transfer contract with the transferor or the company's demand. Thus, under such circumstances, it cannot be evaluated that B's main business right is transferred to the other partner with only one company's main business relationship with B's main business and expressed his/her intent to only seek only settlement of the partnership relationship after withdrawal from the partnership relationship with B's main business relationship.

Application of Statutes

1. Relevant Article of the Act concerning the facts constituting the crime;

Article 330 of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

Reasons for sentencing

Although the Defendant appears to have committed the instant crime in economic difficulties, and the Defendant had already been sentenced more than three times to commit the same kind of crime, it is difficult to find out serious anti-influences as the Defendant committed the instant crime, and the damage from the instant crime is not completely recovered, considering the motive and background leading up to the instant crime, the result of the instant crime, the circumstances after the commission of the crime, the age, character and conduct, and environment of the Defendant, and other various sentencing factors indicated in the records, such as the Defendant’s age, character and environment, etc.

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

Judges Kim Sung-sung