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(영문) 서울고등법원 2015.10.01 2015노2079
준특수강도등
Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. According to the evidence submitted by the prosecutor (1) misunderstanding of facts (as to quasi-special robbery), the exercise of tangible force by the defendant against the above victim at the time of the crime of larceny against victim D shall be deemed to have reached the level of sufficient suppression of attack on arrest of the above victim or exchange of property, but such exercise does not constitute an assault against quasi-special robbery, and thus, the judgment of the court of first instance that acquitted the defendant of this part of the charges is erroneous in the misapprehension of facts, thereby affecting the conclusion of the judgment.

(2) The first sentence of an unreasonable sentencing decision (one year and six months of imprisonment) is too unhued and unfair.

B. The sentence of Defendant 1’s first instance is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake of facts

A. The summary of the facts charged (as to quasi-special robbery) is as follows: (a) the Defendant attempted to open a high-priced tool located inside the victim D's house after the Defendant committed the nighttime robbery as indicated in the judgment of the court of first instance; (b) and (c) the victim returned back after completion of his work as a key to the victim D's house after committing the crime of larceny at night, i.e., paragraph (1) of the facts charged in the judgment of the court of first instance, and (d) the victim's body was sealed to the Defendant for the purpose of evading arrest, and (e) cutting the victim's body from the front stairs to the victim's door, and (e) assaulting

B. Since violence and intimidation, which is a constituent element of the crime of quasi-Robbery in the relevant legal doctrine and quasi-Robbery, is required to be an extent to suppress a person’s resistance against the general robbery crime, the crime of robbery is established only when there is an assault or intimidation that can be deemed as a degree to suppress a person’s intent of arrest, objective arrest, or exchange of property, or a person who seeks to exchange property (see, e.g., Supreme Court Decision 90Do193, Apr. 24, 1990).

The first instance court's judgment is based on the evidence duly admitted and investigated by the court of first instance, and according to the facts in its reasoning, the defendant uses clothes and bags to the victim D.

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