(영문) 서울중앙지방법원 2019.6.21. 선고 2019고합98 판결

Of the facts charged in the instant case, each of the charges on violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) on October 4, 2018 and November 21, 2018 shall be acquitted.

The summary of the acquittal part in this judgment shall be publicly notified.

Reasons

Criminal History Office

【Criminal Power】

On April 1, 2014, the Defendant was sentenced to one year and six months of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the Seoul Central District Court, and was sentenced to ten months of imprisonment for night intrusion larceny at the Seoul Northern District Court on October 28, 2015, and was sentenced to two years of imprisonment for night intrusion larceny at the Seoul Northern District Court on November 2, 2016, and completed the final execution on September 16, 2018.

【Criminal Facts】

1. Injury by robbery;

On January 4, 2019, at around 03:45, the Defendant: (a) invaded upon another’s residence in Jung-gu Seoul Metropolitan Government E, and transferred the surrounding areas to the wishes of theft; (b) opened an unlocked gate and door door and opened the victim F’s dwelling; and (c) opened the victim’s dwelling to the victim’s dwelling; and (d) discovered the victim’s property to be stolen by entering the victim’s dwelling room; and (c) led the victim to commit the crime and escape.

When the Defendant came to know that the victim was satisfing to get the Defendant while leaving the gate after going through the front door, the Defendant prices the inside part of the victim by the method of strongly closing the satisfy gate, which was opened outside to prevent the victim from satisfing, and put the victim a eyebrow for the left side of the treatment days.

Accordingly, the defendant injured the victim for the purpose of evading arrest or destroying the trace of the crime while thiefing.

2. Violation of the Aggravated Punishment Act;

The Defendant, who was sentenced to imprisonment at least three times due to night residence intrusion theft, etc., stolen property owned by each victim within the period of repeated crime, as follows:

(a) Larceny; November 30, 2018;

On November 30, 2018, 03:00, the Defendant: (a) invaded upon another person’s residence in Jung-gu Seoul Metropolitan Government E and transferred the surrounding area to another person’s wishes to steals; (b) opened a door door that was not set up in front of the victim D’s residence; and (c) removed the victim’s property, such as cash, transportation cards, etc., total amounting to KRW 720,000.

(b) Larceny on January 12, 2018;

On December 11, 2018, at around 04:00, the Defendant sent back the surrounding area to the wishes to steal another’s residence by intrusioning upon another’s residence in Jung-gu Seoul Metropolitan Government E, and opened a door door which was not set up in front of the victim G’s residence and entered the house, thereby thefting the victim’s property, such as cash amounting to KRW 431,00,000.

3. Fraud by using computers, etc.;

On November 30, 2018, around 09:40, the Defendant entered information into an information processing device, such as a computer, 152 times in total from the aforementioned date to January 3, 2019, and obtained a total of 205,200 won from the victim, by being provided with services equivalent to 1,350 won in the market price, as shown in the attached list of crimes, by using the same transportation card for free passenger cars issued to D, which was stolen as described in paragraph (1) of Article 2, as if the Defendant had legitimate right to use.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F and G;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Partial statements of the police interrogation protocol No. 1 and No. 2 against the defendant;

1. Each prosecutor's statement concerning F and D (including attached data);

1. Each police statement of F and G (including attached materials);

1. A written statement of F, D, and G;

1. Seizure records, replies to matters requested for cooperation with investigation, B card transactions records, voluntary reports on the same conduct, and place where crimes are committed;

Structure Map

1. Investigation reports (related to the details of damage), investigation reports (related to the belongings of a suspect and photographs of the appearance of a suspect), investigation reports (exploitation of a site and hearing of the statement of damage), investigation reports (investigations related to belongings at the time of arrest of a suspect), investigation reports (in addition to statement of a victim G: A tag held by a suspect confirmed as the damaged article) (including each accompanying material);

1. A report on occurrence (thiefs Nos. 38), report on internal investigation (related to characteristics of the scene and damage situations), report on internal investigation (victim's statement, such as damaged articles), report on internal investigation (on-site verification), and report on internal investigation (CCTV perusal: Confirmation of the suspect's appearance) (including attached materials);

1. A statement of inquiry into previous records of judgment, and a report of investigation (including data appended to repeated offenses of special Acts);

Application of Statutes

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

Article 337 of the Criminal Act, Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 330 of the Criminal Act, Article 347-2 of the Criminal Act, and Article 347-2 of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (amended by the proviso to Article 42 of the Criminal Act for the crime of robbery at night after the execution of punishment was completed on September 16, 2018).

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2 and 50 of the Criminal Act (aggravated Punishment within the proviso to Article 42 of the Criminal Act)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Return to a victim;

Article 333(1) of the Criminal Procedure Act

Judgment on Defendant and Defense Counsel’s argument

1. The point of injury by robbery;

A. Summary of the assertion

The Defendant intentionally intruded the residence of the thief and escaped from the attempted crime, and there is no fact that he strongly closed the gate to avoid tracking the victim or suffered an injury by selling the inside and outside of the victim’s inside and outside of the thief. Therefore, the Defendant is not liable for the crime of robbery.

B. Determination

According to the evidence above, the Defendant: (1) went through the gate and the entrance door of the victim’s residence that was not locked on January 4, 2019, and then intruded to the ward and stolen objects; and (2) The Defendant immediately escaped and the victim escaped from 1.5m to 2m; (3) the Defendant was aware that the Defendant got out of the victim’s gate; and (4) the Defendant got out of the gate immediately after passing through the gate in the direction of the gate, the Defendant strongly shut down the gate to the gate; and (4) the victim received first aid, etc. by suffering from an injury where the gate was teared.

According to the above facts, the Defendant, who attempted to commit a larceny and attempted to flee, and inflicted an injury on the victim who followed away to evade arrest, and thus, cannot be exempted from the liability for the crime of injury by robbery.

We cannot accept the above arguments of the defendant and his defense counsel.

2. Violation of each Act on the Aggravated Punishment, etc. of Specific Crimes;

A. Summary of the assertion

There has been no theft of property due to intrusion upon each victim's residence.

B. Relevant legal principles

In a criminal trial, the conviction should be based on evidence with probative value sufficient to mislead the judge that the facts charged are true beyond a reasonable doubt, and if there is no evidence to form such a conviction, even if there is doubt about the defendant's guilt, it shall be determined as the benefit of the defendant. However, such doubt is not necessarily required to be formed by direct evidence, but it may be formed by indirect evidence unless it violates the empirical and logical rules. Even if indirect evidence does not have full probative value as to the facts of the crime individually, if it is deemed that a comprehensive probative value that is not independent if comprehensive examination of all evidence is conducted in mutual relation, it can be acknowledged as facts of the crime. On the other hand, the degree of the formation of a conviction to find the defendant guilty should be sufficient to have a reasonable doubt, but it does not require it to be excluded from all possible doubts that are unreasonable, and it is not permissible to reject evidence by causing no reasonable ground to be admitted as probative value beyond the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 2005Do31684).

C. As to the larceny of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on November 30, 2018

1) Facts of recognition

According to the evidence mentioned earlier, the victim was stolen: (i) between November 29, 2018 and November 30, 2018, 06: (ii) around November 30, 2018; (iii) around 1st subway station in Jung-gu Seoul Special Metropolitan City (hereinafter “the instant transportation card”); (iv) around 10th subway station in the same subway station; and (v) around 10th day in the same subway station in the same subway station; and (v) around 10th day in the same subway station in the same subway station; (v) around 10th day in the same subway station; (v) around 10th day in the same subway station in the same subway station; and (v) around 14th day in the same subway station in the same case, the victim was able to take and take from the same subway station in the same subway station.

2) Defendant’s statement on the particulars of possession of the instant transportation card

On November 30, 2018, the Defendant stated at an investigative agency that the instant transportation card, which is far from the history of the Cheongmul Station No. 1 of the subway, was used directly in the Cheongmul Station No. 1 of the subway. On November 30, 2018, the Defendant presented the data that the instant transportation card was used for the first time after theft from the 3rd Station of the subway No. 1:42 on November 30, 2018, and immediately presented the data that was used for the first time after the theft from the 3rd Station of the subway No. 1:00 on November 30, 2018.

3) Determination

In full view of the following circumstances revealed by the aforementioned facts and the evidence revealed earlier, the fact that the Defendant intruded the victim’s residence and stolen the instant transportation card, etc., without any reasonable doubt, can be acknowledged.

① The crime of this part was committed between November 29, 2018 and November 30, 2018 to 06:00, in the vicinity of the subway 1 line 3 Station. The Defendant first used the instant transportation card in the subway 1 line 3 Station around November 30, 2018, when it was very close from the date of the crime, around 09:42, at around 09:42, when it was very close from the date of the crime. Around 1, 2019, around 03:47, the Defendant was arrested with possession of the instant transportation card.

② In light of the time and place of the crime, the time and place of the Defendant’s use of the instant transportation card, the time and place of the Defendant’s movement, the Defendant’s movement card from November 29, 2018 to November 30, 2018, and the Defendant’s movement, etc., it is difficult to obtain the instant transportation card from a third party in light of the empirical rule to take a theft of the instant transportation card from around 20:00 to around 04:0 on November 30, 2018, by intrusioning the victim’s residence adjacent to the instant subway route, and thrown away or lowered the instant transportation card on the floor before around 04:0 of the same day, it is difficult to view that the Defendant, other than the Defendant, was able to obtain the instant transportation card from around 3:00 to around 1:0 of the subway route, and it is difficult to deem that the Defendant, other than the Defendant, was a thief.

(3) The time and place of the criminal defendant who intrudes another person's residence and stolen an article shall almost coincide with the time and place where the criminal defendant remains, and the time and place of the criminal act in this part is very similar to the criminal act committed in excess of, or after, the means and method of the criminal act in this part.

④ The Defendant’s statement on the developments leading up to the possession of the instant transportation card is as follows: (i) the Defendant’s statement, as seen above, was: (ii) there is little possibility that the Defendant might have stolen, dumped, or deteriorated the instant transportation card; and (iii) the Defendant’s statement was in conflict with the Defendant’s happiness that: (iv) the Defendant did not return to the Defendant’s species 1 or 3 of the subway in the vicinity of the new wall area on the same day (the Defendant was not a thief in the prosecution on the same day without theft; and (iv) the Defendant took the instant transportation card in the subway route 3: (v) the Defendant’s statement (Evidence No. 1:392 of the Evidence Record) that was near the subway No. 1, the subway No. 392; and (v) the Defendant, who had taken the instant transportation card near the subway No. 1, which had been found considerably far away from the acquisition of the instant transportation card; and (v) the said statement appears to have been reversed due to the lack of reasonable reason to the consistent with the present circumstances.

⑤ If the Defendant acquired the instant transportation card due to any circumstance other than this part of the crime, there seems to be no particular reason to make a false statement on the grounds of the acquisition thereof.

4) Sub-committee

We cannot accept the above assertion of the defendant and his defense counsel.

D. As to the thief violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) on December 11, 2018

1) Facts of recognition, etc.

(6) On December 11, 2018, the aforementioned evidence revealed to the effect that (i) an offender who was divingd with diversatory diversatory 4, 2018, intruded into the victim’s residence in Jung-gu, Seoul and escaped, and (ii) the victim immediately went away from his/her residence and her left-hand divers with a little sloped divers from 4,00 alley, and (iii) the offender was excluded from the above diversary diversary 4, 200, 200, 200, 200, 300,000,000, 40,000,000,000,000: 4,000,000,000,000,000,000,000,000,000,00,00,00,00,00.

2) Determination

In full view of the following circumstances recognized by the aforementioned facts and the evidence revealed earlier, the fact that the defendant invadedd the victim’s residence and stolen a test color tag may be acknowledged without any reasonable doubt.

(1) The Defendant intrudes upon another person’s residence and carried the object back to the vicinity of the victim’s residence. This part of the means and methods of the crime are very similar to those of the crime planned by the Defendant, as well as those of the crime committed over or after.

② The Defendant was in the same color as a criminal’s shoulder, and moved to the direction that the criminal was presumed to have escaped at the same time as the time of the crime in this part.

At that time, there is no circumstance that a third party other than the defendant was found in the place of crime.

③ At the time when about three minutes elapsed from the place of crime, the Defendant opened a test color tag (the victim himself/herself stated that he/she was certain) at a place less than two minutes away from the place of crime, and examined the contents thereof. In fact, the victim’s wall tag that has been lost only in cash in his/her nearby address was found to have been abandoned.

(4) The defendant was unable to explain the reason why he opened a wall and examined the contents by opening it again.

5) Although the Defendant stated that he would open his wall, the wallets held by the Defendant at the time of arrest on January 4, 2019 are different from the wallets (CCTV shot photographs) that the Defendant opened as above.

3) Sub-decisions

We cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for three years and six months to twenty-five years (voluntary mitigation);

2. Scope of recommended sentences according to the sentencing criteria;

(a) A crime under subparagraph 1;

[Determination of Punishment] 02. In the event of the occurrence of an injury, a general robbery

[Special Escopics] Reductions: Simple assault and intimidation to escape arrest, where there was a minor injury or negligence, and the result of an injury but the basic crime was committed but the attempted crime was committed.

[Recommendation and Scope of Recommendations] Special Mitigation Zone, one year to four years of imprisonment

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in Articles 2 and 3;

[Determination of Punishment] thief under the Specific Crimes Aggravated Punishment Act (Type 1), joint habitual thief and repeated thief,

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment from June to 3 years

(c) Scope of recommendations according to the standards for handling multiple crimes: One year and six months to six years (the upper limit of the first crime + the upper limit of the second crime + 1/2 of the upper limit of the third crime + 1/3 of the upper limit of the third crime);

(d) Scope of the recommendation range revised according to the applicable sentencing range: Imprisonment with prison labor for up to six years from June to six years (in cases where the lowest limit of the sentencing range recommended by the sentencing criteria is inconsistent with the statutory minimum limit of the applicable sentencing range, it shall be based on the statutory minimum limit of the applicable sentencing range);

3. Determination of sentence: Imprisonment with prison labor for a period of three years and six months;

The favorable circumstances of ○○: The Defendant committed the instant crime several times for the purpose of obtaining money easily without any particular occupation and making it difficult for the basic life due to economic reasons; the commission of the instant crime appears to have led to the instant crime; in the case of robbery and bodily injury, the victim was injured during the escape process; the degree of injury was relatively minor; and the total damage to the instant larceny and computer, etc. was relatively small even after the execution of the last imprisonment was completed at least 16 times with the same criminal power; the Defendant committed the instant crime during the period of repeated crime for which 1 month has not passed yet since the execution of the last imprisonment was completed; for the purpose of obtaining money easily through economic activities through legitimate labor; the Defendant committed the larceny of the type similar to the previous crime with no intention to obtain money from the victims; the Defendant did not appear to have reached an agreement on the risk of theft and the continuous use of stolen objects at night; and the Defendant did not appear to have any considerable means and method of ensuring the legal interests of the victims, such as taking away things at night or causing infringement by additional use of stolen objects.

○ The Defendant’s age, character and conduct, environment, motive and background of the offense, means and consequence of the offense, and all of the sentencing factors in the trial process of this case, including the circumstances after the offense, shall be determined as ordered.

The acquittal portion

1. Summary of the facts charged

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) on October 4, 2018;

On October 4, 2018, the Defendant invadedd the victim N's residence in Jung-gu Seoul Metropolitan Government E on October 4, 2018, and stolen it with a bank owned by the victim, including KRW 120,000 in cash.

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) on November 21, 2018;

At around 02:00 on November 21, 2018, the Defendant abused the victim’s residence in Jung-gu Seoul Metropolitan Government E, with a bank owned by the victim equivalent to KRW 520,000.

2. Determination

A. Relevant legal principles

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a doubt as to the defendant's guilt, the interest of the defendant should be determined (see, e.g., Supreme Court Decision 2006Do735, Apr. 27, 2006).

B. On October 4, 2018, as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)

1) According to the evidence submitted by the prosecutor, the fact that the Defendant invadedd the victim’s cycle around October 4, 2018, and stolen the victim’s interest with a bank owned by the victim, which was 120,000 won in cash following the victim’s death, is recognized.

2) In light of the fact that the time, means and method of the above theft crime were similar to the defendant's past crime, etc., and that the defendant was the victim's dwelling near the Seoul mid-gu P, Seoul, which was the victim's dwelling, and was in custody of another person's dwelling and infringed on another person's dwelling and carried over another person's dwelling (No. 1st right 319 pages of the evidence record), it is doubtful that the defendant did not commit this part of the crime. The victim stated in the investigative agency that "after taking the photograph of the defendant from several heads of the criminal investigation agencies, it is the same as the defendant's appearance, face, and number of head that does not exist." (Evidence No. 2nd right 367 pages of the evidence record).

3) In the criminal identification procedure based on the appearance, etc. of the suspect, it is necessary to record in advance the witness's statement or description as to the suspect's appearance, etc. in order to enhance the credibility of the witness's statement in the criminal identification procedure, and to make the suspect confirm the suspect's identity by presenting only one photograph to the witness. The witness's statement in the criminal identification procedure should be evaluated in detail in order to ensure that the suspect's statement or description as to the suspect's appearance, etc. should be recorded in advance in order to prevent the suspect from meeting the witness's identity at the same time, and that the suspect's identity and character should not be compared to the witness's identity, and that the witness's statement in such a way should be evaluated in advance in 10 years, including the suspect's appearance, unless there are any additional circumstances such as whether the suspect is aware of the suspect's identity, or not, other than the victim's statement.

In full view of the following circumstances, the victim’s statement that the Defendant pointed out as an offender is obtained when the victim did not observe the procedure to enhance the credibility of witness’s statement in the criminal identification process, and not only does the victim have been aware of the Defendant or there are other special additional circumstances to deem that the victim has credibility. Therefore, it is difficult to view that the victim’s statement itself is a highly reliable evidence with the value of evidence directly admitted as evidence.

① On December 19, 2018, two months or more after the occurrence of this part of the crime, the police revealed several photographs of the Defendant to the victim. At the time, the police did not show the photographs of other comparable persons, i.e., whether a person is not a person subject to comparison, and ii) expressed that a person on the photograph is suspected of being a criminal.

② The victim made a statement at the police to the effect that “after committing this part of the crime, he is well aware of the offender’s appearance, etc., and his memory as a locker of the test color system” (No. 2: 37 of the evidence record) and did not specifically describe the body body, the shot, the shot, the head pattern, etc. of the offender before viewing the Defendant’s photograph.

③ The victim stated to the effect that the victim did not see the offender at the time of ‘the court’, but did not see the offender at a fixed level. However, the victim stated to the effect that he was able to flickly flickly and flickly flickly flickly flick and flickly flickly flick and flickly flickly

(4) The reason why the victim reported this court’s photograph to the effect that the Defendant was a criminal is that the Defendant’s photograph was the same as that of the CCTV image-cape photograph, which was shown by the police, and that the above photograph was known to the Defendant on the day of the crime. The above photograph was taken by the victim on September 28, 2018, which was considerably far away from the victim’s residence (No. 2:36 page 41 of the evidence record). The above photograph was not related to this part of the crime.

4) In light of the aforementioned doubtful circumstances, it is insufficient to recognize that the Defendant committed a crime under this part of the evidence submitted by the victim’s statement on the category of the offender and the prosecutor, and it is difficult to deem that this part of the facts charged is proven beyond reasonable doubt.

C. On November 21, 2018, as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)

1) According to the evidence submitted by the prosecutor, the following facts are revealed: (a) the offender intruded into the victim’s residence on November 21, 2018 at around 02:00, and stolen it with a bank owned by the victim equivalent to KRW 520,000,00, and (b) the Defendant did not return to the victim’s neighboring residence on November 21, 2018 (Evidence No. 1:325, title 325, of the evidence record); (c) the offender with a verification color locked was found to have returned to the victim’s adjacent residence on November 21, 2018; and (b) the Defendant went to the victim’s residence in Jung-gu Seoul Special Metropolitan City on around 02:14:28 on the same day; (c) the victim’s right to 204:20,000 adjacent CCTV to the victim’s residence; and (d) the Defendant did not return to the victim’s right to 25:204m of the evidence.

3) However, in full view of the following circumstances, it is insufficient to recognize that the Defendant committed a crime under this part of the facts and the evidence submitted by the Prosecutor alone, and it is difficult to deem that this part of the facts charged is proven beyond reasonable doubt.

(1) In most of the images taken in CCTV around the victim’s residence (No. 2, 204-209 of the evidence record), the color and physical appearance of the knife can only be confirmed by the outer shape of the knife. On the ground that the color of the knife and the outer shape of the body cannot be clearly identified and the physical characteristics of the knife photograph taken cannot be concluded to be the Defendant on the ground that the knife photograph of the knife cannot be clearly identified.

② There is no evidence to deem that the time and place of the Defendant’s stay at the time and place of this part of the crime correspond to the date and place of the crime, and there is no evidence to deem that the Seoul Jung-gu, Seoul, where approximately 250 meters away from the victim’s place of residence immediately after the occurrence of the crime, moved to the aggregate (the Defendant’s photograph taken around approximately 250 meters away from the victim’s place of residence is merely a material consistent with the Defendant’s statement that the victim’s place of residence

(3) There is no evidence to verify where the offender has stolen a white finger in his/her residence, and there is no evidence to deem that the Defendant had a white finger at the same time.

3. Conclusion

Thus, since each of the above facts charged constitutes a case where there is no proof of crime, each of the above facts charged is pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by publicly announcing the summary of the verdict not guilty under Article 58 (2

Judges

The presiding judge, assistant judge and assistant judge

Judges Lee Jae-in

Judges Seo-gu

Note tin

1) Some of the facts charged were modified according to the facts obtained through the examination of evidence to the extent that the Defendant did not materially disadvantage the Defendant’s exercise of the right to defense.

Attached Form

A person shall be appointed.