Defendant 1 and two others

Defendants and Prosecutor

Freeboard State

Public-service Advocates Kim Jong-hwan et al.

Applicant for Compensation

Daegu District Court Decision 2008 Godan1530 Decided October 24, 2008

The guilty portion of the judgment of the court below shall be reversed.

Defendants shall be punished by imprisonment for two years.

The number of days of detention prior to the pronouncement of the judgment below shall be 183 days in the above sentence against Defendant 1 and 186 days in the above sentence against Defendant 2 and 3, respectively.

Seized evidence Nos. 1 through 10 shall be confiscated from Defendant 1, and Nos. 47 through 55 from Defendant 2 and 3, respectively.

The prosecutor's appeal against the acquittal portion of the judgment below is dismissed.

An application filed by an applicant for compensation shall be dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts (Defendant 1)

Defendant 1 did not assist and abetting Defendant 2 and 3 to commit the crime as stated in the judgment of the court below, as stated in Article 2. A of the crime No. 2.

(2) Unreasonable sentencing

Each punishment sentenced by the court below to the defendants (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts

According to the evidence submitted by the prosecutor, among the facts charged in this case, the court below found Defendant 1 guilty of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) and the custody of stolen property. However, the court below erred by misapprehending the facts and acquitted Defendant

(2) Unreasonable sentencing

Each of the above types of punishment sentenced by the court below to the defendants is unfair.

2. Judgment of party members

A. Judgment on the mistake of facts by Defendant 1

According to the evidence duly admitted and investigated by the court below, Defendant 1 instructed Defendant 2 and 3 to purchase a small Kameras, a part of the single-life robot that is an accessory to the apartment entrance, which is a small Kameras, the crime of opening locking the locking device through the cover-up of the apartment entrance, and it can be fully recognized that Defendant 1 assisted and abetted the larceny of Defendant 2 and 3 by making the method of manufacturing and using robots. Thus, the above argument by Defendant 1 is without merit.

B. Judgment on the prosecutor's assertion of mistake

(1) Violation of the Aggravated Punishment, etc. of Specific Crimes (Larceny)

(A) Facts charged: Defendant 1, at the house of the applicant for compensation of the victim of the ○○ apartment (dong No. 2 omitted), which had been attempted at the end of April 2008 at the time of the opening of the opening of the opening of the entrance, installed a locking device by inserting “rop” into the opening of the opening of the entrance, and intruded into the bottom of the opening of the opening of the locking bank, and stolen Defendant 1, at the end of the opening of the opening of the opening of the entrance one, Jin-ju 1, 1, 1, 1, 4, 1, 1, 20 male net gold bars at one, 2, 1000,000 won of the two keys, including 30,000,000 won of the two keyss of the 10,0000 square meters of the 10,0000 square meters of the 10,000 won.

(B) The judgment of the court below: Each statement made by the police at the police on April 17, 2008 of the defendant 1, 2, and 3 is denied by the court of the court below, and it is inadmissible as evidence, and each statement at the investigative agency of the applicant for compensation and the court of the court of the court below as well as each statement at the investigative agency and the court of the court of the court below as evidence consistent therewith, investigation report (information hearing of the victim's statement), investigation report (verification of counter-victim 2 as the victim's counter-indicted 2) and police seizure report (Investigation record 69 pages) are included, but the victim's compensation applicant's statement at the court of the court of the court below to the effect that it may have been stolen on April 17, 2008 and the statement at the police investigation report (information hearing of the victim's statement) to the effect that the defendant had the meaning of theft on April 17, 2008 and evidence of the crime of larceny can not be found separately by the evidence of this part.

(C) Party members' judgment: Then, we examine closely the part of acquittal among the reasons of the judgment of the court below by comparing it with the records, we affirm that the judgment of the court below is just, and there is no error of mistake of facts as pointed out by the prosecutor. Thus, the prosecutor's allegation in this part is without merit.

(2) Points of storage of stolen goods

(A) Facts charged: Defendant 1, on April 20, 2008, posted the stolen goods at the ○○○○○○el located in the main Dong-dong, Seogu, Daegu, Daegu, on April 2008, with the knowledge that the market price of Defendant 2 and 3 stolen by Defendant 2 and 3 was 1,000,000 won (vehicle number omitted) and kept the stolen goods.

(B) The judgment of the court below: The statements made by the police officers of the defendant 1, 2, and 3 are denied by the court of the court below, and thus, it is not admissible as evidence, and the remaining evidences alone are insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge this, and thus, the court below acquitted the defendant 1, 2,

(C) Party members' judgment: Then, we examine closely the part of acquittal among the reasons of the judgment of the court below by comparing it with the records, we affirm that the judgment of the court below is just, and there is no error of mistake of facts as pointed out by the prosecutor. Thus, the prosecutor's allegation in this part is without merit.

C. Ex officio determination

The crime of aiding and abetting Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) was committed ex officio despite the existence of a necessary mitigation reason under Article 32(2) of the Criminal Act. However, the lower court erred by omitting aiding and abetting Defendant 1, which affected the conclusion of the judgment. As such, the part against Defendant 1 among the conviction portion of the lower judgment was no longer maintained.

D. Determination on Defendant 2 and 3’s assertion of unfair sentencing and on Defendant 2 and Defendant 3’s assertion of unfair sentencing on each of the Defendants 2 and 3

In light of the above facts, the defendants 2 and 3 had the records of punishment several times for the same crime. The crime of this case is a repeated crime committed by the above defendants after having been sentenced to imprisonment with prison labor for the same crime within 3 years since the completion of the execution of the crime. In light of the implements used for the crime of habitual larceny of this case, the frequency of theft and the amount of damage, etc., there are circumstances that the crime of this case is not good quality. However, there are favorable circumstances such as the fact that the defendants agreed with four of the five victims in the trial, and that the defendants are deeply divided and reflected in the trial, and that there are other favorable circumstances such as the age, character, environment, occupation, and circumstances after the crime of this case, each punishment against the defendants of the court below is too too unreasonable. Thus, each of the above arguments by the defendants are justified.

3. Conclusion

Therefore, since the part of the judgment of the court below against Defendant 1 among the guilty part of the judgment below is a ground for ex officio reversal as seen earlier, the above part is reversed pursuant to Article 364(2) of the Criminal Procedure Act without any further need to determine the grounds for appeal of unfair sentencing against Defendant 1 and Defendant 1 by Defendant 2 and Defendant 3, and since the appeal against Defendant 2 and Defendant 3 is well-grounded, the part against Defendant 2 and Defendant 3 among the judgment below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided after pleading as follows. Since the application for the applicant for compensation is without merit, it is so decided as per Disposition by the assent of all participating Justices

The summary of the facts constituting an offense and evidence recognized by this court is as shown in each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Defendant 1: Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 331(2) and 32(1) of the Criminal Act, Article 362(2) and (1) of the Criminal Act (Appointment of Imprisonment)

Defendant 2 and 3: Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 331(2) of the Criminal Act.

1. Aggravation of repeated crimes;

Article 35 of the Criminal Code

1. Aid and mitigation;

Defendant 1: Articles 32 (2) and 55 (1) 3 of the Criminal Act [the crime of aiding and abetting in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes]

1. Aggravation of concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Discretionary mitigation;

Defendant 2 and 3: Articles 53 and 55(1)3 of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Code

1. Confiscation;

Article 48(1)1 of the Criminal Act

Judges Park Jong-soo(Presiding Judge)