(영문) 대전고등법원 청주재판부 2015.10.15. 선고 2015노106 판결

(1) In the case of larceny at night, the victim's cell phone was taken by admitting the victim's cell phone as the defendant, and the defendant had no criminal intent to commit the larceny.

(b) An inspection;

The sentence of the court below (six years of imprisonment) is too unhued and unjust.

2. Determination:

A. As to the defendant's assertion of mistake of facts or misapprehension of legal principles

1) Whether the thief was guilty

The lower court determined that the Defendant had a criminal intent of larceny on the ground that it was difficult for the Defendant to easily understand the victim’s cell phone because the Defendant, at the time of police investigation and prosecutorial investigation, made a statement to the effect that he was aware of why he had been the victim’s cell phone, and that he was aware of why he had been in possession of the victim’s cell phone, and that he was aware of the victim’s cell phone when he was the second interrogation at the time of the second interrogation by the prosecution, and that the Defendant was working until the day of the instant case in the restaurant operating the victim.

Examining the evidence duly adopted and examined by the court below and the court below in light of the relevant legal principles, the above judgment below is acceptable, and there is no error of law such as misunderstanding of facts as alleged in the grounds for appeal. This part of the grounds for appeal is without merit.

2) As to the claim of mental disability

According to the records, although the defendant appears to have drinking at the time of each of the crimes in this case, in light of all the circumstances such as the background, means and method of each of the crimes in this case, and the defendant's behavior before and after the crime in this case, it does not seem that at the time of each of the crimes in this case, the defendant was in a state that he had the ability to discern things or make decisions due to drinking. The allegation in the grounds of appeal

B. Regarding the prosecutor's assertion of unreasonable sentencing

The Defendant began to assault a victim, who had been in a state where he was unable to take away his body properly due to the minor reason that the victim had committed the crime of larceny, and continued to assault the victim even though the victim was deemed to have lost his consciousness. Furthermore, the victim prices several parts of the victim’s hair and clothes, etc., which may cause danger to his life by using a military gear, and the victim died. In the end, the crime is very poor in light of the law, circumstance, and consequence of the crime. Furthermore, the Defendant was sentenced to imprisonment with prison labor for 12 years due to murder and abandonment of body around 200, and the Defendant committed each of the crimes in this case on February 12, 2015, including imprisonment with prison labor for one year due to the murder and intimidation, and completed prison life for the victim, and even if he was released from prison on February 12, 2015, it appears that there is no possibility that the victim’s bereaved family members were not able to take advantage of such circumstances as monetary and mental compensation in the future.

3. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is the same as that of each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal

Application of Statutes

1. Article applicable to criminal facts;

Articles 259(1) and 330 of the Criminal Act (the occupation of robbery at night)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Provided, That the proviso of Article 42 of the Criminal Act shall apply to the crimes of bodily injury branch)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso of Article 42 of the Criminal Act (the penalty shall be more severe)

Reasons for sentencing

2. (b) As above, in consideration of the time limit for sentencing, the sentence shall be determined as per Disposition.