(영문) 서울중앙지방법원 2014.3.14. 선고 2013고합175-1 판결

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Cases

Defendant

Prosecutor

Defense Counsel

Imposition of Judgment

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울중앙지방법원 2014.3.14. 선고 2013고합175-1 판결

(분리),가.특정범죄가중처벌등에관한법률위반(장물)나.도로교통법위반(무면허운전)다.절도라.사기

Cases

2013Gohap175-1 (Separation), 1367 (Joint), 2014Gohap148 (Joint)

(a) Violation of the Act on the Aggravated Punishment, etc.;

(b) Violation of the Road Traffic Act;

(d) Fraud;

Defendant

(d) A;

Prosecutor

Promotions for Class ¥§§ 5 (Public Trial).

Defense Counsel

Attorney B (Korean National Assembly)

Imposition of Judgment

March 14, 2014

Text

A defendant shall be punished by imprisonment for one year.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

To order the accused to provide community service for 120 hours.

The seized Aphone 4S 1 (No. 1) shall be returned to C by the victim.

Reasons

Criminal facts

【2013Gohap175】

At around 09:30 on January 28, 2013, the Defendant thefted the victim’s 1 unit (IMF: 0130400400909329, No. 1) and 800,000 won at the market price within the waiting room of “E-Ba” located in D when light-baking time.

【2013Gohap1367】

On July 24, 2013, the Defendant sent a text message to the effect that “SK’s gift certificates are sold” inserted in the Internet portal site NVVF car page at a non-place on the Internet portal site: (a) the Defendant sent a text message stating that “The Defendant would sell SK’s gift certificates to 90,000 won to the victim’s cell phone.” However, the Defendant did not possess the said gift certificates, and thus, did not have any intent or ability to sell the certificates even if the Defendant received the payment from the victim. Nevertheless, the Defendant, by deceiving the victim, received KRW 90,00 from the victim to the company bank account (H) in the name of the Defendant on the same day from February 14, 2013 to October 31, 2013; (b) the Defendant received total of KRW 139 from the victim’s bank account (H) bank account, Korea (I) account (H), agricultural cooperative account (H), 302, and 382, and 362.

【2014Gohap148】

On October 3, 2012, at around 22:36, 2012, the Defendant: (a) posted a notice stating that “the victim L would purchase gold gift certificates” on the “F” bulletin board; (b) contacted the victim, and (c) stated that “the victim would have two copies of gift certificates: (a) gold compulsory sales of KRW 100,000 won; (c) sold two copies of gift certificates to KRW 140,000,000,000,000,0000,000 won; (d) the Defendant did not have the intent or ability to sell them even if the Defendant did not possess the said gift certificates and received the payment from the victim. Nevertheless, the Defendant, by deceiving the victim as above, received 140,000 won from the victim to the corporate bank (H

Summary of Evidence

【2013Gohap175】

1. Statement by the defendant in court;

1. A written statement prepared by C;

1. Protocols of seizure and list (Evidence Nos. 4);

1. The photograph of seized articles (the sequence 5);

【2013Gohap1367】

1. Statement by the defendant in court;

1. Each police statement of M, N,0, P, and Q;

1. Each statement prepared by G, R, S, T, U,V, W, X,Y, Z, AA, AB, and AC;

1. Each deposit certificate, each certificate of deposit, each written confirmation of results of transfer, each financial transaction statement, each financial transaction statement, each account transaction statement, each transfer certificate, official receipt, public account statement, details of the transaction concerned, statement of transactions, and immediately after the transfer;

1. The details of each text message and the screen pictures that output each sales text message;

1. Report on investigation (Evidence Nos. 56) and output of CCTV screen;

【2014Gohap148】

1. Statement by the defendant in court;

1. Statement of the police concerning L;

1. The details of account transactions and the details of account transfer;

Application of Statutes

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

(a) The point of larceny: Article 329 of the Criminal Act;

(b) The point of fraud: Article 347 (1) of each Criminal Act;

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment as provided for in the crime of fraud against a victim Y with the largest penalty)

1. Suspension of execution: Article 62 (1) of the Criminal Act (The following extenuating circumstances that are favorable to the reasons for sentencing);

1. Community service order: Article 62-2 (1) of the Criminal Act, Article 59 of the Act on Probation, etc.;

1. Return of victims: Article 333 (1) of the Criminal Procedure Act;

Reasons for sentencing

1. The scope of punishment: Imprisonment with prison labor for not more than 15 years;

2. Application of the sentencing criteria: Imprisonment with prison labor for not less than one year but not more than three months; and

(a) Theft;

[Determination of Punishment] Types 2 (General thief) for thief in general property

【Special Convicted Person】

[Recommendation Area and Punishment] Basic Area, Imprisonment with prison labor for not less than six months, but not more than one year and six months;

B. Fraud

[Determination of Punishment] General Fraud (less than 100 million won)

[Special Persons] When committing a crime against an unspecified or large number of victims, or repeatedly committing a crime over a considerable period of time

[Recommendation Area and Punishment] Aggravated Punishment Area, 1 to 2 years. The maximum of the sentence range of larceny shall be added to the maximum of the sentence range of larceny, which is the basic crime for dealing with multiple crimes.

3. Determination of sentence: One year of imprisonment, two years of probation, two years of community service, 120 hours disadvantageous to the defendant; the defendant committed the crime of defraudation of goods similar to this case at the Seoul Southern District Court on July 9, 2013; 300,000 won of each summary order from the Jinwon District Court on July 29, 2013; and the defendant committed the crime of larceny of the victim's mobile phones locked in Manana and sells them or repeatedly by using the Internet bulletin board, and thus, it is not appropriate to commit such crime; and the defendant did not take necessary measures to recover damage to victims.

그러나 다른 한편으로는, 피고인의 절도 및 사기 범행으로 인한 피해가 비교적 경미한 점, 넵고인이 이 사건 범행으로 4개월 남짓 구속되어 있는 동안 자신의 잘못을 깊이 뉘우치면서 진지한 반성을 하고 있는 점, 피고인은 병든 홀어머니를 부양하면서 가정의 생계를 책임지다가 2011년 실직 이후 생활비와 어머니의 병원비를 조달하기 위하여 이 사건 편취 범행에 이른 것으로 보이고, 범행수익의 대부분이 실제 그와 같은 용도로 사용되는 등 범행동기와 범행수익의 사용처에 다소나마 참작할 만한 바가 있는 점, 피고인의 어머니가 피고인의 선도를 다짐하고 있고, 갱생과 재기의 의지를 강하게 피력하고 있는 점 등 참작할 만한 유리한 정상이 적지 않고, 그밖에 피고인의 성행, 환경, 가정환경, 범행의 동기, 수단 및 결과, 범행 후의 정황 등 이 사건 공판과정에 드러난 제반 양형조건과 위 양형기준의 정함을 두루 감안할 때, 피고인에게는 당장의 실형보다는 이번에 한하여 봉사활동을 통한 속죄의 기회를 갖게 하고 그 형의 집행을 유예함이 옳다고 보고서 위와 같이 형을 정하였다.