Defendant

Prosecutor

Nabricity

Attorney Kim Young-chul

Jeonju District Court Decision 2007Gohap54 decided Oct. 5, 2007

The judgment of the court below is reversed.

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

One hundred and sixty-two days of detention before the judgment of the court below is rendered shall be included in the above sentence.

1. Summary of grounds for appeal;

A. misunderstanding of facts (as to the charges of injury by robbery)

피고인에 대한 강도상해 부분의 공소사실의 요지는, “피고인은 원심 공동피고인 1, 2, 4와 길거리를 지나가는 사람을 때려 돈을 빼앗기로 결의하고 범행대상을 물색하던 중, 2007. 4. 26. 04:30경 군산시 월명동에 있는 월명공원 산책길에서, 원심 공동피고인 1이 피해자 공소외 1(남, 60세)을 발견하고 ‘저 사람이 어떠냐’고 말하자 피고인, 원심 공동피고인 2, 4도 모두 이에 동의하여 피해자를 범행대상자로 선정한 후, 피고인, 원심 공동피고인 4는 주변에서 망을 보고, 원심 공동피고인 2는 피해자를 쫓아가 뒤쪽에서 피해자의 다리 부위를 발로 차고, 원심 공동피고인 1은 비틀거리는 피해자의 머리를 발로 차 바닥에 넘어뜨리고, 원심 공동피고인 2, 1은 발로 넘어져 있는 피해자의 얼굴, 다리 등 온몸을 수회 차 항거불능하게 한 다음, 피해자의 바지 뒷주머니에서 피해자 소유의 삼성카드 1장, 주민등록증 1장, 운전면허증 1장, 현금 40,000원이 들어있는 지갑을 꺼내어 가 이를 강취하고, 피해자에게 약 7주간의 치료를 요하는 우측 무릎뼈골절 등(추가진단 약 4주간의 치료를 요하는 상악좌측중·측절치 등 파절 등)의 상해를 가하였다”는 것이다.

On April 26, 2007, the court below found the defendant and the defendant 4 of the court below not guilty of this part of the facts charged on the ground that it is not sufficient to recognize that the defendant and the defendant 4 of the court below were punished as co-defendant 1 as co-defendant 1's co-defendant 1's co-defendant 1's proposal, conspired with co-defendant 1 and 2 of the court below's crime of robbery injury with the victim non-indicted 1's robbery injury, and further, it is hard to recognize that Co-defendant 1 and 2 of the court below ordered the defendant not guilty of this part of the facts charged on the ground that it is not sufficient to recognize that the defendant and co-defendant 4 of the court below were punished as co-defendant 1 as co-defendant 1's robbery injury by robbery.

B. The assertion of unfair sentencing

The punishment determined by the court below against the defendant is too uneasible and unfair.

2. Determination as to the grounds for appeal (as to the assertion of factual errors)

According to the evidence duly admitted and examined by the court below, the facts as to this part of the judgment of the court below (the defendant, co-defendant 1, 2, and 4 of the court below, Co-defendant 1 of the court below, Co-defendant 2 of the court below, and Co-defendant 1 of the court below, Co-defendant 2 of the court below, and Co-defendant 1 of the court below, Co-defendant 2 of the court below agreed to all of the defendant, Co-defendant 4 of the court below's proposal of Co-defendant 1 of the court below, Co-defendant 1 of the court below, Co-defendant 2 of the court below, and Co-defendant 2 of the court below, Co-defendant 2 of the court below, Co-defendant 2 of the court below, and Co-defendant 1 and 2 of the court below stated that the defendant, Co-defendant 1 of the court below suffered robbery from robbery in accordance with the victim's first of all on April 26, 2007.

Therefore, it is difficult to accept measures to reject the credibility of each of the above statements made by Co-defendant 1 and 2 without any specific grounds, and rather, the following facts acknowledged by the evidence duly adopted and examined by the court below and the following circumstances which are ratified therefrom, i.e., it is difficult to find out special reasons or opportunity to change the defendant who had worked for 3 hours at the scene of the crime immediately before the crime. ② Co-defendant 1 et al. were students of 14 or 15 at the time of the crime described in each of the facts charged in this case, and the defendant was not the sole adult, and the defendant was not the Co-defendant 1 and Co-defendant 4 at the court below's location to recognize the credibility of each of the above statements made by the court below as Co-defendant 1 and Co-defendant 4 at the time of the court below's non-defendant 2's statement, and there is no reason to acknowledge that Co-defendant 4 and Co-defendant 1 did not consent to the court below's non-defendant 2's statement as Co-defendant 4 in the court below's reasoning.

However, there is no evidence to prove that the defendant had committed the robbery by Co-defendant 1 and 2 of the court below at the time of the commission of the robbery by Co-defendant 1 and 2 of the court below, but because the defendant, together with Co-defendant 1 of the court below, imitated with Co-defendant 1 of the court below to commit robbery by robbery with the victim Non-indicted 1, and was extremely serious body, it is recognized that the defendant committed robbery to the scene of the crime according to Co-defendant 1 of the court below and was easy at a place less than 200 meters, the defendant is liable for the crime of robbery injury as co-principal of the crime of robbery. Therefore

3. Conclusion

Therefore, the judgment of the court below which acquitted the charged facts of robbery shall be reversed, and the charged facts of special larceny and the charged facts of concurrent crimes under the former part of Article 37 of the Criminal Act shall be sentenced to a single punishment for all the above facts. As such, the part of the judgment below as well as the whole of the judgment of the court below shall not be reversed. Since the prosecutor's argument of mistake of facts is with merit, the judgment of the court below shall be reversed under Article 364 (6) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing, and it shall

The Defendant resolved to take money when Co-Defendant 1, 2, and 4 of the lower judgment and to steals money when she passes with Co-Defendant 1, 2, and 4 of the lower judgment and sought the subject of the offence;

1. In collaboration with Co-Defendant 1, 2, and 4 of the lower judgment:

On April 26, 2007, at around 01:30 on April 26, 2007, the victim non-indicted 2, who is located in Simsan-si (number omitted), was able to report the network before the above entrance. Co-defendant 1 and 2 of the court below, who intrudes the above upper entrance glass with the stones in the surrounding area, and intrudes the victim's DNA tobacco owned by the victim at the display stand up to the upper point, with a total of KRW 184,70,00 in total, and KRW 184,70,000 in Simsan-si Yan-si Y-si Ga, and that thefts it;

2. Co-defendant 1, 2, and 4 of the lower judgment in collusion:

다음날인 2007. 4. 26. 04:30경 군산시 월명동에 있는 월명공원 산책길에서, 원심 공동피고인 1이 피해자 공소외 1(남, 60세)을 발견하고 “저 사람이 어떠냐”고 말하자 피고인, 원심 공동피고인 2, 4가 이에 동의함으로써 피해자 공소외 1을 범행 대상으로 선정한 후, 원심 공동피고인 1, 2, 4는 피해자를 쫓아가 원심 공동피고인 4는 주변에서 망을 보고, 원심 공동피고인 2는 뒤쪽에서 피해자의 다리 부위를 발로 차고, 원심 공동피고인 1은 비틀거리는 피해자의 머리를 발로 차 바닥에 넘어뜨리고, 이어 원심 공동피고인 1, 2는 발로 넘어져 있는 피해자의 얼굴, 다리 등 온몸을 수회 차 항거불능하게 한 다음, 피해자의 바지 뒷주머니에서 피해자 소유의 삼성카드 1장, 주민등록증 1장, 운전면허증 1장, 현금 40,000원이 들어있는 지갑을 꺼내어 가 이를 강취하고, 피해자에게 약 7주간의 치료를 요하는 우측 무릎뼈골절 등(추가진단 약 4주간의 치료를 요하는 상악좌측중·측절치 등 파절 등)의 상해를 가하였다.

1. The defendant's legal statement (part), co-defendant 1 and 2's legal statement in the original trial;

1. The legal statement of Nonindicted 3 by the witness of the court below

1. Examination protocol on co-defendant 1 and 2 prepared by the court below;

1. Statement of Nonindicted 2 and 1 prepared by the judicial police assistant

1. Protocol of seizure of the preparation of an assistant judicial police officer;

1. A medical certificate of injury written in Nonindicted 4 and 5

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 337, 30 (Aggravated Injury by Robbery, Selection of Imprisonment) of the Criminal Act, Article 331 (2) and (1) of the Criminal Act (a point of special larceny)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes concerning Robbery and Injury by Robbery as in the Judgment No. 37, Articles 38 (1) 2 and 50 (Aggravation of Concurrent Punishment)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (Consideration of Sentencing favorable to the following)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

The Defendant, one of the green students, was accompanying Co-Defendant 1, 2, and 4 of the lower court’s judgment, and was actively involved in each of the instant crimes, but he was not guilty of committing any of the instant crimes, and he was fully responsible for all of the two liabilities that he was unrelated to the robbery of this case to Co-Defendant 1 and 2 of the lower court. In addition, even though the victim Nonindicted 1 suffered a serious mental and physical damage due to the robbery of this case, the Defendant did not endeavor to recover the damage, and the victim Nonindicted 1 was willing to punish the Defendant.

Considering the above circumstances, the defendant should be punished with severe punishment; however, the defendant agreed with the non-indicted 2, who is the victim of the special larceny crime; the defendant deposited KRW 3,00,000 for the victim non-indicted 1; on May 2001, the fact that there is no criminal records except for those subject to the disposition of custody by the Juvenile Department at the Gun Office of the previous District Prosecutors' Office in the previous District Prosecutors' Office, the fact that there is no criminal records shall be considered as favorable circumstances to the defendant; and on the other hand, the punishment shall be determined within the scope of the punishment sentence as ordered, taking into account all the factors of the sentencing specified in this case

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

Judges Donsung (Presiding Judge) Lee Ho-ho