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(영문) 서울고등법원 2016.09.30 2016노400 (1)
특수강도등
Text

All parts of the judgment of the court below against the defendant shall be reversed.

A defendant shall be punished by imprisonment for not less than four years and six months.

Reasons

1. Summary of grounds for appeal;

A. Fact-misunderstanding (the judgment of the court below No. 1) 1) the Defendant took money and valuables from victims. However, the Defendant did not directly use the electric shock machine, and even according to the victim K’s statement, the Defendant et al. first taken the bank and cash back, and then B dried up the electric shock machine.

Therefore, as the defendant acted together with B and C to cause danger and injury to the victims, the victim's property was forcibly taken.

The lower court erred by misapprehending the legal doctrine regarding special robbery.

2) From May 4, 2015 to May 13, 2015, the Defendant did not participate in the cash withdrawal of the instant Bosing crime, and thus, it is unreasonable to ask the Defendant to commit a crime relating to fraud during the said period.

B. Improper sentencing (as to the judgment of the court of first instance and second instance) (as to the judgment of the court of second instance: imprisonment with prison labor for six years, and imprisonment with prison labor for six months) declared by the court of first instance is too unreasonable.

2. The first and second judgment of the court below rendered a separate judgment on the defendant's ex officio judgment, and the defendant filed an appeal in entirety, and the court decided to hold the above two cases together.

Each crime of the first and second judgment against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, one sentence should be imposed pursuant to Article 38(1) of the Criminal Act. Thus, the judgment of the court below cannot be maintained as it is.

However, despite the above reasons for reversal ex officio, the defendant's assertion of mistake as to the judgment of the court of first instance is still subject to the judgment of this court, and this is examined.

3. Judgment on the Defendant’s assertion of mistake of facts

A. According to the evidence duly adopted and examined by the first instance court, Defendant B and C, the joint Defendant B and C of the first instance court, conspired to take cash from the books of the Bosing withdrawal, coloring the subject, and money at the bank on June 25, 2015.

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