[1] In a case where the seized article cannot be confiscated because it is an stolen, but is likely to be destroyed or damaged or to significantly decrease its economic value, whether the investigative agency may dispose of the seized article and take custody of the consideration (affirmative)

[2] In a case where the investigative agency lawfully sold the seized article and kept it in custody because it is impossible to confiscate the seized article as it is an stolen article, but is likely to cause a loss or damage, or to significantly decrease economic value, whether the proceeds of the sale in custody should be refunded to the victim (affirmative)

[3] In a case where a reason for return to the victim is apparent as stolen property, whether the court may not order the return of the victim at its discretion (negative)

[1] Article 132 of the Criminal Procedure Act, which applies mutatis mutandis to the seizure by a prosecutor and a judicial police officer pursuant to Article 219 of the same Act, provides that "where the seized articles to be confiscated are likely to be destroyed or damaged, to be decomposed, or to be decomposed, they may be sold and the proceeds therefrom may be kept in custody." The proceeds from the sale in custody shall be the same as those of the seized articles in itself. However, as long as the seized articles are not the articles to be confiscated, they may be destroyed, decomposed, etc., even if they are not the articles to be confiscated, there is no ground to sell them under the Criminal Procedure Act and keep the proceeds therefrom. However, if the seized articles may not be confiscated because they are stolen, and if there is a concern that the seized articles may be destroyed or damaged, or that the economic value may be significantly reduced, they may be disposed of and kept in custody. In this case, the disposal in question constitutes a management of affairs for the owner of

[2] Where an investigative agency sells and keeps proceeds from the sale of seized articles, which are stolen or damaged or likely to cause a significant loss of economic value, the court shall only return proceeds from the sale to the defendant who is the person against whom the seizure was made, in accordance with the principle of return by the presenter, unless any disposition is taken as to the proceeds from the sale of the seized articles while rendering a judgment. The victim shall return proceeds from the sale of the seized articles to the defendant in accordance with the principle of return by the presenter. The victim shall be entitled to return proceeds from the sale of the seized articles only through a separate civil principal lawsuit or preservation lawsuit. Thus, even if the seized articles are stolen, as long as the sale of the seized articles by the investigative agency constitutes legitimate business management, by analogically applying Articles 219 and 132 of the Criminal Procedure Act, the sale of the seized articles is recognized as identical to the already sold seized articles itself, while recognizing the proceeds from sale to the victim pursuant to Article 333(1) of the same Act. The specific validity of the application of the Act is supplemented

[3] Article 333(1) of the Criminal Procedure Act provides a decoration, and the determination of whether the reason for return is obvious is the discretion of a fact-finding court. However, in light of the meaning of the meaning of the above provision, the fact-finding decision as to whether the reason for return is apparent shall be sufficient by free proof following the judge's free evaluation of evidence, so long as the reason for return is clearly acknowledged, the court shall order the return of the victim by a judgment.

[1] [1] Articles 132 and 219 of the Criminal Procedure Act, Article 33 (1) of the Criminal Procedure Act

[1] Supreme Court en banc Order 94Mo51 delivered on August 16, 1996 (Gong1996Ha, 2764) Decided 4290Da1150 delivered on January 19, 1965 (No. 5-2, 18) (No. 5-2, 2759(2)// [2] Supreme Court Order 94Mo51 delivered on August 16, 1996 (Gong196Ha, 2764)

A and one other

Defendants

Attorneys B and 2 others

Daejeon District Court Decision 200Gohap225 delivered on August 25, 2000

The judgment of the court below is reversed.

All the Defendants shall be punished by imprisonment with prison labor for a maximum of three years, two years and six months, and a fine of two hundred thousand won.

The number of detention days prior to the pronouncement of the judgment below shall be included in the above imprisonment.

To order the Defendants to pay an amount of money equivalent to the above fines.

50,000 won (No. 3) in return for the disposal of 50,000 won (No. 50,000 won, No. 125C of seized large marc f. f. f. f. f. c. f. f. f. f

Of the facts charged in the instant case, Defendant F’s failure to obtain a bicycle license on June 3, 200 from Defendant F, shall be acquitted.

Before determining the grounds for appeal by the Defendants, the lower judgment ex officio examined whether there was a violation of statutes.

According to an investigation report (Investigation Records No. 211), a proposal for keeping the proceeds of seized articles prepared by a judicial police officer (No. 214 pages) and a written estimate (No. 229 pages) prepared by H, the fact that a judicial police officer, under the direction of a prosecutor, sold a stolen victim E-owned property, as shown in No. 10 of the List of Crimes No. 10 of the judgment below, VF 125cc Orala Co., Ltd., five hundred and twenty fivecc Orala Co., Ltd., as listed in the table of crimes No. 10 of the judgment below, and then stored 50,000 won for sale to H, and sent to the prosecutor.

Article 132 of the Criminal Procedure Act which applies mutatis mutandis to the seizure by a prosecutor and a judicial police officer pursuant to Article 219 of the same Act provides that "in cases of seized articles subject to confiscation, which are likely to be destroyed or damaged, or which are likely to be decomposed, or which are difficult to keep, they may be sold and kept in custody." The proceeds from sale kept pursuant thereto are the same as the confiscated articles themselves in cases of confiscation. However, as long as seized articles are not subject to confiscation, they may be destroyed, decomposed, etc., even if they are likely to be destroyed, decomposed, etc., the proceeds from sale under the Criminal Procedure Act does not have any ground for keeping them in custody (see, e.g., Supreme Court Decisions 64Da1150, Jan. 19, 1965;

However, in cases where seized articles cannot be confiscated because they are stolen and thus, are likely to be destroyed or damaged or to significantly reduce economic value (in cases where they do not go through or are operated, it is clear in light of the empirical rule that the state of engine becomes worse and thus the exchange value of Oral Bab itself decreases considerably), an investigative agency that has lawfully kept them can dispose of them and keep them for consideration. In such cases, the act of disposal can be deemed as a management of affairs for the owner of seized articles under civil law (see, e.g., Supreme Court Decisions 4290Da290, Jul. 25, 1957; 25No301, Sept. 301, 195). Accordingly, an investigative agency or State that has sold them can only be held liable for civil compensation according to the legal principles of administration of affairs, and, in such cases, an investigative agency or State that has renounced the right to claim the return of seized articles to the defendant without any further submission of the right to claim the return of the seized articles.

Thus, even if seized articles are stolen, so long as the sale of seized articles by an investigation agency constitutes legitimate administrative affairs, applying Articles 219 and 132 of the Criminal Procedure Act by analogy to the return of the proceeds of sale kept in custody is recognized as identical to the already sold seized articles itself in relation to the return of the victims, and return the proceeds to the victims pursuant to Article 333 (1) of the same Act is supplemented by the deficiencies of the law and the specific validity of the application of the law is achieved.

Article 333(1) of the Criminal Procedure Act provides a decoration provision, and there is a view that determination of whether the reason for return is clear is the discretion of a fact-finding court (see Supreme Court Decision 48 Form9, Feb. 9, 1949). However, considering the meaning of the text and text of the above provision, the fact-finding on whether the reason for return is obvious shall be determined based on the judge’s free evaluation of evidence, and even if it is sufficient to prove free evaluation of evidence, so long as the reason for return is evident, the court should order the return of

Ultimately, the court below erred in the misapprehension of legal principles as to the refund of the price for the sale of stolen goods seized by failing to return 50,000 won for the above sale to the victim E, and affected the conclusion of the judgment by applying the law. Thus, without further determination as to the grounds for appeal by the Defendants, reversed the judgment of the court below pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and then reversed the judgment of the court below, subject to pleading, as follows.

Criminal facts

The judgment of the court below is the same as the corresponding column of the judgment of the court below, which deducts the change of the list of crimes in the attached Form of this judgment to the list of crimes.

Summary of Evidence

"At the same time as the corresponding column of the judgment of the court below, after deducting the addition of "each description of the investigation report (No. 138 pages of investigation records) prepared by Gman on the same half of the investigation report (No. 141 through 146 of investigation records) prepared by the Seo-gu Daejeon Police Station and the International Assistant Class I Police Station of the Criminal Department of Daejeon, the transfer of suspected crimes, such as special larceny (No. 141 to 146 of investigation records) prepared by the judicial police officer."

Application of Statutes

1.The legal provisions applicable to the facts of crime (hereinafter referred to as the "legal provisions") shall apply in common to all the Defendants.

(a) The occupation of robbery: Article 337 of the Criminal Act;

(b) Habitual larceny: Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 331 (2) of the Criminal Act, comprehensively;

(c)The point of driving of a bicycle-free bicycle for motor vehicles: Art. 111, Art. 2 and Art. 40, Art. 40, Art. 111, Art. 2, 111,

2. Statutory mitigation;

Articles 2 and 60(2) of the Juvenile Act, Article 55(1)3 and 6 of the Criminal Act

3. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2 and 3, and Article 50 of the Criminal Act

(a)an increase in the penalty provided for in the crime of robbery, injury or injury heavier than that with respect to which a sentence of imprisonment has been chosen;

(b) Of the crimes of the Defendant A’s violation of the Road Traffic Act, the punishment specified for the crimes of the largest penalty (attached Form ) No. 13 of the sight table of crimes, and the punishment specified for the crimes of the Defendant F’s violation of the Road Traffic Act (attached Form 14) of the largest penalty shall be aggravated;

(c) Imprisonment with prison labor for the crime of robbery and injury by robbery and fines for violation of the Road Traffic Act;

4. Discretionary mitigation;

Articles 53 and 55 (1) 3 and 6 of the Criminal Act (see, e.g., Supreme Court Decision 2006Da14488, Apr. 2, 201)

5. Determination of sentence;

Articles 2 and 60(1) of the Juvenile Act

6. Calculation of the number of days of detention in court;

Article 57 of the Criminal Act

7. Return of victims;

Articles 33(1), 219, and 132 of the Criminal Procedure Act

8. Order of provisional payment;

Article 333(1) of the Criminal Procedure Act

9. Exemption from bearing the costs of lawsuit;

The proviso of Article 186 (1) of the Criminal Procedure Act

Reasons for sentencing

Considering the motive, method and frequency of the instant crime, the Defendants’ criminal records, and all other factors of sentencing as stipulated in Article 51 of the Criminal Act, which were shown in the argument of the instant case, it is reasonable to sentence sentence like the judgment of the court below, even if considering the agreement with some victims including K of the victims of the crime of robbery and injury in the course of the instant trial.

Parts of innocence

Of the facts charged in the instant case, the summary of Defendant F’s license for the bicycle riding without a motor engine device on June 3, 2000 is that Defendant F driven an O125C obababababa in the back part of the body of the ship college located in the Seo-gu, Daejeon on June 3, 2000, Seo-gu, Daejeon on June 3, 200, with L, M, and Defendant A, without obtaining a motor bicycle driving license from the Commissioner of the Local Police Agency.

However, among the first trial records of the court below consistent with this, the statement of the Defendants and the co-defendant M and the statement of the suspect interrogation protocol prepared by the prosecutor with respect to Defendant F on June 22, 2000 are not reliable in light of the following facts. (In particular, the above interrogation protocol prepared by the prosecutor with respect to Defendant F is clear that the person making the original statement expresses F himself as “F” or any person who is no choice but to be seen as Defendant A”, and it is apparent that it is a wrong statement.) In addition, the statement of the suspect interrogation protocol prepared by the judicial police officer for Defendant A and the co-defendant M as Defendant A, the copy of the prosecutor's protocol prepared by the court below, the Daejeon District Police Station 2000 type No. 6707, the Daejeon District Police Station 2000 type No. 6707, etc. prepared by the judicial police officer, and it is insufficient to recognize that the suspect interrogation protocol prepared by the prosecutor as Defendant A and the suspect interrogation protocol prepared by the prosecutor for Defendant M.

Therefore, among the facts charged in the case of this case, the defendant F's non-licenseless driving of the motor engine device on June 3, 2000 does not prove a crime, and thus, the defendant F is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Lee Sung-sung (Presiding Judge)