Defendant 1 and one other

Defendants

Final Costs

Attorney Seo Jong-chul et al.

Daegu District Court Decision 2005Gohap50, 53 (Consolidated) Decided August 26, 2005

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment for ten years.

As to Defendant 1, 148 days of detention prior to the pronouncement of the original judgment shall be included in the above sentence.

Defendant 2’s appeal is dismissed.

As to Defendant 2, 130 days out of the number of days under detention prior to the pronouncement of this judgment shall be included in the sentence of the original judgment against the above accused.

1. Summary of grounds for appeal;

(a) Fact-finding (Defendant 1)

Notwithstanding the fact that the defendant had raped the victim (name omitted), such as the statement in Section 3-A of the crime at the time of the original trial, the court below recognized that the defendant had raped the victim (name omitted) as stated in its decision. The judgment of the court below is erroneous in the misapprehension of facts which affected the conclusion of the judgment.

B. The point of unfair sentencing (the defendants)

In light of the fact that the defendants are often divided into their mistakes, the punishment that the court below sentenced to the defendants is too unreasonable.

2. Determination

A. Judgment on Defendant 1

(1) Determination of misunderstanding of facts

Comprehensively taking into account the evidence duly examined and adopted by the court below and the trial court, the statements made by the victim (name omitted) investigation agency and the testimony made by Nonindicted Party 1 as witness of the trial court, the defendant could recognize the fact that he raped the victim (name omitted) in the course of committing robbery against Defendant 2 and Nonindicted Party 1, together with the victim (name omitted) at the head office of "the (name omitted) operation of the victim (name omitted) at around March 25, 2005 at around 01:30 on March 25, 2005. Thus, the court below cannot be said to have erred in matters of mistake of facts as alleged by the defendant.

(2) Ex officio determination

Before the judgment on the defendant's argument about the chief of the sentencing division, the crime of special robbery, rape and special robbery by force against the victim (name omitted) of Article 3-A of the Criminal Act at the time of the judgment on the charge of the defendant's Sentencing ex officio is in a concurrent relationship under the former part of Article 38 of the Criminal Act because the date, place, etc. of the crime are different. However, all of the above two crimes are deemed to have a concurrent relationship under Article 40 of the Criminal Act, which corresponds to several crimes, with the robbery and bodily injury to the victim (name omitted) under Article 2-B (1) of the Criminal Act at the time of the original judgment. However, the court below aggravated concurrent crimes by deeming that all the above three crimes are in a concurrent relationship under the former part of Article 37 of the Criminal Act, and thus, the court below erred by misapprehending the legal principles as seen above.

B. Judgment on Defendant 2

The Defendant committed each of the crimes of this case during the period of repeated crimes after having been sentenced to a maximum of three years and three years of imprisonment due to robbery, rape, etc. in the past, on January 22, 2004. The Defendant returned to the Republic of Korea with Nonindicted 1 and Nonindicted 1, who committed robbery and larceny continuously and repeatedly over 19 occasions through professional means, and committed robbery and larceny continuously and repeatedly, and the nature of the crime is extremely poor. The punishment of Nonindicted 1, an accomplice by the above crime becomes final and conclusive 10 years of imprisonment with prison labor. In addition to the above crime, the Defendant committed robbery and larceny more than five times together with Defendant 1, and committed the crime of this case during the period of repeated crimes, and the Defendant did not take any measures to ensure that victims who suffered serious damage due to the crime of this case until the court below held that the Defendant violated the Act on Special Cases Concerning the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of the Defendant's Crimes without prison punishment or punishment for more than 10 years of imprisonment with prison labor.

3. Conclusion

Therefore, Defendant 2’s appeal is without merit and is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and one hundred and thirty days of detention days prior to the pronouncement of this judgment shall be included in the punishment of the lower judgment against Defendant 2 pursuant to Article 57 of the Criminal Act. Meanwhile, Defendant 1 is subject to the foregoing ex officio reversal, and as such, Defendant 1’s appeal is without need to further examine the allegation of unfair sentencing, the part of the lower judgment against Defendant 1 among the lower judgment pursuant to Article 364(2) of the Criminal Procedure Act is reversed, and the following is again decided

Since the criminal facts and the summary of evidence against Defendant 1 recognized as a party member are the same as that of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant Article of the Act and the choice of punishment for the crime (excluding the part of concurrent crimes);

(a) The point of each special robbery: Article 334 (2) and (1) of the Criminal Act.

(b) point of each special larceny: Article 331 (2) and (1) of the Criminal Act;

(c) The point of injury by robbery: Article 337 of each Criminal Act, and Article 30 of the Criminal Act.

(d) Specific robbery: Article 5 (2) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof, Articles 334 and 297 of the Criminal Act;

(e) The point of special robbery by force: Article 5 (2) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof, Articles 334 and 298 of the Criminal Act;

(f) Illegal use of air defense: Articles 238 (1) and 30 of the Criminal Act;

(g) Illegal-use air defense events: Articles 238(2) and (1) and 30 of the Criminal Act;

(h) Illegal use of a motor vehicle registration number plate: Article 78 subparagraph 2 of the Motor Vehicle Management Act, Article 71 of the Motor Vehicle Management Act and Article 30 of the Criminal Act.

(i) Unlicensed driving: Subparagraph 1 of Article 109 and Article 40 (1) of the Road Traffic Act.

1. Commercial concurrence and the selection of a punishment;

Articles 40 and 50 of the Criminal Act

A. Between the crime of robbery against the victim ( omitted) and the crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims of Special Robbery, Rape and Indecent Act by Indecent Act by force: Determination of imprisonment with prison labor (see Supreme Court Decision 2000Do1216, Feb. 9, 2001) by deeming that all of the above crimes are in a commercial competition relationship by the so-called “the theory of connecting effect” to be subject to punishment for the crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims due to the severe special robbery and nature of the crime

(b) Between the crimes of unlawful use of air defense and the crimes of violating the Automobile Management Act: Selection of imprisonment with prison labor by punishing a person subject to a heavier punishment;

1. Aggravation of repeated crimes;

(a) Article 3 of the Act on Special Cases concerning the Punishment of Specific Crimes and the Protection of Victims thereof shall apply to each special robbery, each crime of injury by robbery (excluding part of the victim), and a crime of violating the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims thereof due to special robbery: Article 42 of the Criminal Act

(b) For each special larceny, a violation of the Automobile Management Act, an unlawful use of air defense, and a violation of the Road Traffic Act: Article 35 of the Criminal Act;

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act (the punishment imposed on the violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. due to the heavy special robbery and rape)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (including circumstances such as the fact that the period of sex has not elapsed but has not been old, and that the depth has been pened)

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Grounds for sentencing;

The Defendant, who was sentenced to imprisonment with prison labor for a period of two years and six months for a special robbery in the past, was released on February 12, 2004 and was released from prison on February 12, 2004, committed each of the instant crimes during the repeated crime; Defendant returned to the Republic of Korea with Defendant 2 and Nonindicted 1 for a period of 1 month; Defendant committed robbery and larceny continuously and repeatedly over 19 times through professional means; and certain victims suffered injury, which are extremely poor in quality of the crime; Defendant’s imprisonment with prison labor for a period of 10 years for Nonindicted 1, an accomplice. In addition, the Defendant committed robbery and larceny with Defendant 2 on five occasions in addition to the foregoing crimes; Defendant committed rape, indecent act by force on the victim; Defendant’s family relation; Defendant’s family relation and circumstances leading up to the occurrence of each of the instant crimes; Defendant’s occurrence of serious injury to each of the instant crimes; Defendant’s imprisonment with prison labor for a certain period of 10 years; Defendant’s environment and records.

Judges Cho Jin-jin (Presiding Judge)