(State)20No 117 robberys (part 1 preliminary larceny, part 2)

Preliminary criminal possession, embezzlement of stolens, attempted concealment of a corpse;

Fraud, Violation of Specialized Credit Finance Business Act

○○, Non-Service

Residential Jeju

State of Original domicile

Both parties

Han-han Promotion (Public Prosecution), Park Young-young (Public Trial)

Attorney Choi Pung-su (Korean)

Jeju District Court Decision 2020Gohap179 Decided December 10, 2020

on March 10, 2021

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for life.

The seized knife 2 knife knife (Evidence 1 and 2) and knife knife knife knife knife knife (No. 20) shall

1. Summary of grounds for appeal;

A. The defendant (e.g., unfair form)

Imprisonment with prison labor, etc. sentenced by the court below is too unreasonable.

(b) Prosecutors;

The Defendant, from the beginning, killed the above victim with knife with knife for the purpose of taking the knife knife knife knife. Therefore, even if the Defendant again acquired the above victim’s knife and knife mobile phone and knife knife knife knife back to the scene of the crime after six hours after he acquired cash, knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife kn

2. Judgment on the misapprehension of the legal principle of prosecutor

A. The judgment of the court below

On August 30, 2020, the court below found the defendant guilty of larceny on the ground that it cannot be established on the ground that, in light of the following circumstances: (a) around 18:50 on August 30, 2020, the defendant could not be deemed that the victim's cell phone, etc. was under the possession of Kim ○○○, in addition to cash 10,000 won; (b) as to the robbery and the primary facts charged in violation of the Specialized Credit Financial Business Act on the premise that the aforementioned victim's cellular phone and physical check are included as a matter of course; and (c) at the time of robbery, the defendant seems to have no intention to obtain illegal acquisition of the mobile phone and physical check; and (d) further, the defendant could not be found guilty of larceny on the ground that the aforementioned mobile phone, etc. cannot be deemed to have been under the possession of the victim's heir who left the possession of the victim's article.

B. The judgment of this Court

To establish the crime of robbery, first of all, the establishment of robbery must be established, and the intent of unlawful acquisition is required to establish the crime of robbery (see, e.g., Supreme Court Decision 86Do776, Jun. 24, 1986). In such cases, the intent of unlawful acquisition refers to the intent to use and dispose of another person’s goods as his/her own property, excluding the right holder, and referring to the intent to use and dispose of another person’s goods as if they were his/her own property. Permanently, there is no need to hold that another person’s property is consumed to the extent that the use of the goods itself is considerably valuable, considerably long time, or considerably long time, or abandons another person’s property from its original place, and thus, it cannot be deemed a temporary use (see, e.g., Supreme Court Decision 2012Do1132, Jul. 12, 2012).

According to the evidence duly adopted and examined by the court below, the defendant was in preparation for a knife to commit robbery prior to each of the crimes of this case, and the defendant discovered a case containing a cell phone and a physical card and brought about KRW 10,00 in cash at the scene of the crime by moving the victim's knife to a knife and knife with a knife and knife with a knife with a knife and knife with a knife with a knife and knife with the above victim's knife. The defendant, at the time, killed the victim, and took the property owned by the victim's knife with a knife with a knife and knife with a knife with a knife with a knife with the above victim's knife.

In light of the aforementioned legal principles, as long as the Defendant intentionally murdered the victim Kim○, and acquired the case containing cash, physical card, etc. other than the cell phone by taking possession of the victim, it is reasonable to view that the act of taking possession of the victim was completed. This is reasonable to deem that the Defendant had the intention of taking possession of an unspecified property at the time of committing the crime, and the Defendant had a case containing a cell phone and physical card at the entrance of a dry field, left the scene of the crime, and expressed his intent to use and dispose of the above property as his own property, to exclude the right holder of the above property, and to make it difficult for the Defendant to find another person with respect to the above goods as his own property. Furthermore, even if the Defendant again appeared at the scene of the crime, and caused the aforementioned cell phone and the physical card from time to time, it should be deemed that the Defendant had the intention to use and dispose of the above property, etc., and even if it was found that the Defendant had the intention to use the cell phone and the cell phone, etc., and it should be established.

Nevertheless, the court below erred by misapprehending the legal principle that the cellular phone and physical card did not constitute robbery at the time of taking the cash in the primary facts charged, and found the defendant not guilty for this reason. Therefore, as long as the prosecutor's appeal against the primary facts charged is justified and the prosecutor found the defendant guilty of the primary facts charged as to robbery, the prosecutor did not separately judge the primary facts charged for the first preliminary charge added by the modification of the indictment in the original trial.

3. Conclusion

Therefore, the prosecutor's appeal against the non-guilty portion of the judgment of the court below on the ground (the crime of robbery against the mobile phone and physical card and the crime of violation of the Specialized Credit Finance Business Act) is justified, and one sentence should be imposed on each of the above-mentioned and the remaining offenses in the judgment of the court below which the court below found guilty in relation to concurrent offenses under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below is reversed in accordance with Article 364 (

[Grounds for multi-use Judgment]

Criminal facts

1. Robbery;

While the Defendant was living with a credit loan without a certain occupation, the account was suspended due to the unpaid interest of the loan, and the Defendant was suffering from economic difficulties, such as lodging and lodging in the freight vehicle owned by the Defendant (number omitted). The Defendant saw that he forced another person to forced the deduction of money and valuables using a knife (the total length of 32cc, 20cc, 20cc, No. 1) purchased on the Internet.

On August 30, 2020, the Defendant: 18:40, Jeju Island***** from among the cities that operated the above cargo vehicle on the roads near the Folk Day Market in Jeju, the victim Kim ○, who colored the object of the crime, discovered that the victim Kim ○ (here, 39 years of age) is mixed in the right direction, and parked the above cargo at the location expected to pass by the victim, and then the victim is waiting for passing the above cargo vehicle.The victim confirmed that the above cargo vehicle is connected to the Korean farm road after the lapse of the cargo vehicle and got out of the cargo vehicle.

The defendant, around 18:50 on the same day, 18:50, ****** in front of dry field in ** the victim's knife with the above knife called "in dub, tax base, etc.," and carried with knife with the knife, caused the victim to be placed in a dry field where he was frighted, frightd with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife and the knife with the knife with the knife with the knife with the knife.

Accordingly, the defendant took the victim's property by taking the victim's property and killed the victim.

2. A person who conceals the corpse;

On August 31, 2020, at around 00:30, the Defendant, as stated in paragraph (1), intended to move the body of Kim 00, killed to a grass forest that is difficult for others to discover, and attempted to return the body of the victim back to the place specified in paragraph (1) and the victim’s body located in such place to a grass forest with a volume of 5 meters, but did not come to the wind of the victim’s cell phone signal to escape immediately after hearing that the victim’s cell phone signal is sounding.

Accordingly, the defendant tried to conceal the body and attempted to commit it.

3. Fraud and violation of the Specialized Credit Finance Business Act;

(a) The primary crime;

around 01:55 on August 31, 2020, the Defendant purchased stuffs, such as milk, from ‘(mutual omission)’ in ‘(mutual omission) operated by the victim under name in ****’s (mutual omission)’, and paid KRW 51,100 as if the Defendant had the right to use the above e-mail card. Accordingly, the Defendant used the e-mail card taken by force and by deceiving the victim, received property worth KRW 51,100 from the victim, which is equivalent to KRW 51,100.

(b) Second crimes;

피고인은 2020.8.31. 02:06경 제주시 *****에 있는 피해자 이▲▲이 운영하는 '(상호생략)' 편의점에서 콜라 등의 식료품을 구입하면서 제3의 가항 기재와 같은 방법으로 18,400원을 결제하였다. 이로써 피고인은 강취한 체크카드를 사용하고, 피해자를 기망하여 이에 속은 피해자로부터 18,400원 상당의 재물을 교부받았다.

Summary of Evidence

1. The defendant's oral statement in court;

1. Each prosecutor and police interrogation protocol of the accused;

1. On-site identification report, each written appraisal report, a written autopsy report, a written report on a result of a survey by a person who has suffered from a change, a written autopsy and appraisal report, each receipt (Evidence List 22, 23, 44), and a detailed statement of card transactions;

1. Each CCTV photograph (Evidence Nos. 5, 8, 24, 25, 43, 51) and each photograph (Evidence No. 18, 19, 28, 47, 57, 61, 62);

Application of Statutes

1. Article applicable to criminal facts;

The first part of Article 338 of the Criminal Act, Articles 162 and 161(1) of the Criminal Act, Article 347(1) of the Criminal Act, Article 70(1)4 of the Specialized Credit Finance Business Act (the use of force-based debit cards, the use of force-based debit cards, and the choice of imprisonment)

1. Punishment for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 1, and Article 50 of the Criminal Act (Inasmuch as a person selects a punishment for life for the crime of robbery with the largest punishment, no other punishment shall be imposed)

1. Confiscation;

The reason for sentencing under Article 48 (1) 1 of the Criminal Code is that the defendant, while taking the cash, cellular phone, and physical check owned by the victim Kim 00, caused the victim to die with knife at least six times in the course of taking the knife, shoulder, chest part, etc., and attempted to return back to the scene of the crime and conceal the body of the victim again, and used the knife card as if it had been used.

The Defendant committed robbery with a view to gaining economic benefits. In particular, the Defendant prepared a knife in order to commit robbery, and tried to conceal and conceal the body of the Defendant, and attempted to do so again after committing robbery, and in light of the circumstance of the crime, means, and circumstances after committing the crime, etc., such as the cash owned by the victim Kim○ and the cash acquired by the commission of the crime, and the purchase and taking of food and coffee by using a knife card, etc., the quality of the crime is not very good. The Defendant did not make any effort to recover damage caused by the crime until now, and was not entirely written to the bereaved family members of the victim Kim○○○. As a result, the victim’s bereaved family members cannot be able to live together with the pain, pain, pain, dys and frys that are difficult to live.

However, all of the above crimes are recognized by the defendant, and the fact that there is no past record of criminal punishment before the case is considered as favorable to the defendant.

The punishment as ordered shall be determined by taking into consideration the following circumstances and all of the sentencing conditions shown in the records and arguments, such as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, etc.

The presiding judge, king judge

Judge Kim Gin-han

Judges Park Jong-soo