2007Do1375 Armed Robbery, Aggravated Robbery, Violation of the Specialized Credit Financing Business Act, Larceny, Violation of the Road Traffic Act(Unlicensed Driving)

Justices Kim Young-ran(Presiding Justice), Kim Hwang-sik, Lee Hong-hoon(Justice in charge), Ahn Dae-hee

Main Issues

 * 1) Whether the act of using the cards to withdraw cash from the ATM machines with the ATM cards extorted by threat constitutes a crime of larceny separately a crime of extortion(negative)
 * 2) Whether the act of using the cards to withdraw cash from the ATM machines with the ATM cards extorted by threat constitutes a crime of larceny separately a crime of robbery(affirmative)

Summary of Decision

 * 1) The act of receiving the permit to withdraw cash by using the ATM cards, the act of receiving the ATM cards and the act of using the cards to withdraw cash from the ATM machines have all been conducted within the intention of the defendants to rob the victims of their deposits, which constitutes one crime of threat, and the act of obtaining the deposits of the victims from the ATM machines shall not be separated from the act of robbing the ATM cards (refer to Supreme Court Decision 95Do1728 delivered on September 20, 1996 et al.). This is because the above act of withdrawing money was conducted through the permission of the victims, so until the victims cancel the expression of the intention to permit the use, the ATM cards can be used legitimately and effectively, and the banks also do not have any choice but to give the cash out legitimately unless the victims request a hold on withdrawals.
 * 2) Unlike the crime of threat, the crime of robbery is constituted when property is robbed by the means of violence and threat that is strong enough to repress the victim's resistance, so if an ATM card is robbed from the victim, it shall not be deemed that the victim expressed his intention to permit the use of his ATM card. Therefore, the act of obtaining the deposits of the victims from the ATM machines by using a robbed ATM card shall not be deemed to have been through the permission of the victims, and it amounts to exclude the manager of the ATM machine against his will and to move the cash under the criminal's control, which shall be deemed to constitute a crime of theft, separately from the crime of robbery.

Reference Provisions

 * 1) Articles 37, 329, 350 of the Criminal Act
 * 2) Articles 37, 329,333 of the Criminal Act


 * Article 37 of the Criminal Act (Concurrent Crimes)

Several crimes for which judgment has not become final, or a crime for which judgement to punish with an imprisonment without prison labor or a heavier punishment has become final and the crimes committed before the said final judgment shall be regarded as concurrent crimes.


 * Article 329 of the Criminal Act (Larceny)

A person who steals another's property shall be punished by imprisonment for not more than six years or by a fine not exceeding ten million won.


 * Article 350 of the Criminal Act (Extortion)


 * (1) A person who, by extortion, causes another to surrender his property or obtains pecuniary advantage from the latter, shall be punished by imprisonment for not more than ten years or by a fine not exceeding twenty million won.


 * (2) The preceding paragraph shall apply to a person who, by the methods of the preceding paragraph, causes a third person to obtain a surrender of such person's property or to obtain pecuniary advantage from the latter.


 * Article 333 of the Criminal Act (Robbery)

A person who forcibly takes another's property or obtains pecuniary advantage from another or causes a third person to do so through violence or intimidation, shall be punished by limited imprisonment for not less than three years.

Reference Cases

 * 1) Supreme Court Decision 95Do1728 delivered on Sep. 20, 1996(Gong1996ha, 3244)/[2]Supreme Court Decision 2007Do11377 delivered on April 13, 2007

[Defendant] Defendant 1 and 1 other

[Appellant] Prosecutor

[Counsel] Attorney Lee Jong-kyung (Public defender for the defendants)

[Judgment of the court below] Busan High Court Decision 2006No736 delivered on January 25, 2007

Disposition
The court below's decision shall be reversed, and the case shall be remanded to Busan High Court.

Reasoning
This is to judge the Reasons for Appeal.


 * 1. On the verdict of not guilty by the court below


 * A. The court below, out of the sued facts in this case, delivered a verdict of not guilty on the part, "On March 3, 2006 at around 14:59, at Myong Jang Post Office located in Dong Rae Gu, Busan, Defendant 1 was on the lookout outside of the above post office, while Defendant 2 inserted the Kookmin Bank ATM card that he had robbed from Person 1 who is not a party in this case the same day into an ATM machine managed by Myong Jang Post Office, typed in the password that he had obtained by threatening Person 1 who is not a party in this case and withdrew 4.2 million Korean won in cash in 6 installments, while on April 19, 2006 at around 14:35, at Hyung Gok Credit Union located in the city of Gumi, Defendant 2 inserted the Nonghyup ATM card that he had robbed from Person 2 who is not a party in this case the same day into an ATM machine managed by Hyung Gok Credit Union, typed in the password that he had obtained by threatening Person 2 who is not a party in this case and withdrew 1.63 million Korean won in cash in 3 installments." The main reason for the court below to have delivered a verdict of not guilty is that the cards had been robbed by threatening the holders of the ATM cards, and even though the holders expressed their opinions, they permitted the use of their ATM cards to withdraw cash, so until the victims cancel the expression of the intention to permit the use, the ATM cards can be used legitimately and effectively, and the banks also do not have any choice but to give the cash out legitimately unless the victims request a hold on withdrawals, so the act of receiving the permit to withdraw cash by using the ATM cards, the act of receiving the ATM cards and the act of using the cards to withdraw cash from the ATM machines have all been conducted within the intention of the defendants to rob the victims of their deposits, which constitutes one crime of robbery, and the act of obtaining the deposits of the victims from the ATM machines shall not be separated from the act of robbing the ATM cards only because the cash was obtained against the will of the manager of the ATM machines.


 * B. The act of receiving the permit to withdraw cash by using the ATM cards, the act of receiving the ATM cards and the act of using the cards to withdraw cash from the ATM machines have all been conducted within the intention of the defendants to rob the victims of their deposits, which constitutes one crime of threat, and the act of obtaining the deposits of the victims from the ATM machines shall not be separated from the act of robbing the ATM cards (refer to Supreme Court Decision 95Do1728 delivered on September 20, 1996 et al.). This is because the above act of withdrawing money was conducted through the permission of the victims, so until the victims cancel the expression of the intention to permit the use, the ATM cards can be used legitimately and effectively, and the banks also do not have any choice but to give the cash out legitimately unless the victims request a hold on withdrawals.


 * But unlike the crime of threat, the crime of robbery is constituted when property is robbed by the means of violence and threat that is strong enough to repress the victim's resistance, so if an ATM card is robbed from the victim, it shall not be deemed that the victim expressed his intention to permit the use of his ATM card. Therefore, the act of obtaining the deposits of the victims from the ATM machines by using a robbed ATM card shall not be deemed to have been through the permission of the victims, and it amounts to exclude the manager of the ATM machine against his will and to move the cash under the criminal's control, which shall be deemed to constitute a crime of theft, separately from the crime of robbery (refer to Supreme Court Decision 2007Do1377 delivered on April 13, 2007).


 * C. Nevertheless, the court below delivered a verdict of not guilty on the above part noting that because the defendants robbed the victims of their ATM cards, the act for the defendants to use the ATM cards to withdraw money from the ATM machines does not get separated from the act of robbing the ATM cards so does not constitute a crime of theft, which is in violation of the law that affected the decision by misunderstanding legal reasoning concerning the crime of robbery and the crime of theft, and the argument in the Reasons for Appeal that points the above out is reasonable.


 * 2. On the verdict of guilty by the court below

The prosecutor brought an appeal also on the part of the verdict of guilty by the court below, but there are no reasons for appeal written either on the Appeal or the Reasons for Appeal.


 * 3. Conclusion

The part of the verdict of not guilty by the court below shall be reversed, but that part is in the relation of a concurrent crime with the part of the verdict of guilty by the court below as stipulated in Article 37 of the Criminal Act which calls for one sentence, so there is no choice but to reverse the decision by the court below in its entirety.

Wherefore, the decision by the court below shall be reversed, and the case shall be returned to the court below so that is shall be deliberated and judged again, and this decision is delivered with the assent of all Justices involved.

Source

 * Supreme Court Decision 2007Do1375 Delivered on May 10, 2007, Supreme Court Library of Korea

2007도1375