Open Decision Ledger · Criminal law
Intent to gain unlawfully in robbery by escaping a debt
Supreme Court, June 30, 2021, 2020Do4539 (judgment)
Case name: 강도상해
Official text on the National Law Information Center
Question
When a person assaults or threatens a creditor so as to escape a debt, how is it decided whether that person had the intent to gain unlawfully which robbery requires?
Holding
The intent to gain unlawfully is the element that separates robbery from an ordinary offence against the person, and robbery cannot stand without it, so robbery causing injury presupposes robbery itself. Because the intent lies in the mind, the court can only judge whether it existed by weighing the objective circumstances before and after the violence, and the question must be examined carefully and closely. On this record the Supreme Court found it hard to see that the defendant had any such intent when he assaulted the victims.
Summary of the holding, verbatim
불법이득의사는 마음속에 있는 의사이므로, 피고인과 피해자의 관계, 채무의 종류와 액수, 폭행에 이르게 된 경위, 폭행의 정도와 방법, 폭행 이후의 정황 등 범행 전후의 객관적인 사정을 종합하여 불법이득의사가 있었는지를 판단할 수밖에 없다.
Unofficial English translation
Since intent to obtain unlawful gain is an intent residing in the mind, whether there was intent to obtain unlawful gain cannot but be determined by comprehensively considering the objective circumstances before and after the commission of the offense, such as the relationship between the defendant and the victim, the kind and amount of the debt, the course of events leading to the assault, the degree and method of the assault, and the circumstances following the assault.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Circumstances weighed Stated in the decision
범행 전후의 객관적인 사정을 종합하여 불법이득의사가 있었는지를 판단할 수밖에 없다.
Unofficial English translation
Whether there was intent to obtain unlawful gain cannot but be determined by comprehensively considering the objective circumstances before and after the commission of the offense.
Factors
- 강도상해죄가 성립하려면 먼저 강도죄의 성립이 인정되어야 하고
- 불법이득의사는 단순 폭력범죄와 구별되는 중요한 구성요건 표지이다
- 피고인과 피해자의 관계, 채무의 종류와 액수, 폭행에 이르게 된 경위, 폭행의 정도와 방법, 폭행 이후의 정황 등 범행 전후의 객관적인 사정을 종합하여 불법이득의사가 있었는지를 판단할 수밖에 없다
- 폭행·협박 당시 피고인에게 채무를 면탈하려는 불법이득의사가 있었는지는 신중하고 면밀하게 심리·판단되어야 한다
Unofficial English translation
• For the crime of robbery resulting in injury to be established, the establishment of the crime of robbery must first be recognized, and
• Intent to obtain unlawful gain is an important identifying characteristic of the constituent elements that distinguishes the offense from simple violent crimes
• Whether there was intent to obtain unlawful gain cannot but be determined by comprehensively considering the objective circumstances before and after the commission of the offense, such as the relationship between the defendant and the victim, the kind and amount of the debt, the course of events leading to the assault, the degree and method of the assault, and the circumstances following the assault
• Whether the defendant had intent to obtain unlawful gain to evade the debt at the time of the assault or threat must be tried and determined carefully and thoroughly
Relation to precedent
Follows earlier decisions Read from the decision
대법원 2004. 5. 14. 선고 2004도1370 판결 등 참조
Unofficial English translation
See Supreme Court Decision 2004Do1370 decided May 14, 2004, etc.
Decisions referred to
대법원 2004. 5. 14. 선고 2004도1370 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How will the Seoul High Court, on remand, weigh the objective circumstances before and after the violence to decide whether the defendant had the intent to gain unlawfully?
The remand judgment of the Seoul High Court, once it re-examines the intent on the record and gives its reasons, will show how the listed circumstances are applied. Any later Supreme Court decision on whether indirect intent suffices for the intent to gain unlawfully, or an amendment to Article 333 of the Criminal Act, would call for this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 9 April 2020 (2019No2458), convicted the defendant of robbery causing injury. It reasoned that even if avoiding the bill had not been the main purpose of the assaults, the defendant knew that by assaulting the bar owner he would escape payment, so at least indirect intent to rob was made out.
Supreme Court standard: The Supreme Court held that this reasoning misapprehended the law on the intent to gain unlawfully in robbery causing injury. On the record, the defendant had grown excited when the owner shone a torch at his face and pushed him with it, and was enraged when she grabbed his clothes from behind as he tried to leave; although the victims had fled or lay unable to resist, he did not flee the scene but followed victim 2 out of the bar and came back to assault the fallen owner again, and was found lying on the floor when the police arrived; the unpaid bill of KRW 137,000 was not a large sum, he worked as a daily labourer at construction sites and had paid for drinks elsewhere that day several times without difficulty. It reversed the judgment below and remanded the case to the Seoul High Court, the Justices being unanimous.
Distinguishing conditions
- A charge of ordinary assault in which no claim of escaping a debt is made, since the intent to gain unlawfully is what the decision uses to separate robbery from simple violence.
- A case in which the objective circumstances before and after the violence plainly show the intent to escape the debt, since the Court left that intent to be judged on all the circumstances together.
- A robbery charge that does not rest on violence against a creditor, since the decision frames its question for robbery established by assaulting or threatening a creditor to escape a debt.
Record verification notes
Set the unpaid amount, KRW 137,000, against the defendant's income and his payments elsewhere on the same night, since the Court relied on both. Then follow the sequence: whether the violence followed the owner's shining the torch and pulling his clothes, whether he left once the victims could not resist, whether he returned, and where he was when the police arrived. Finally, check whether the court below rested the conviction on indirect intent, as this one did, since the Supreme Court held that the judgment below misapprehended the law on the intent to gain unlawfully in robbery causing injury.
From the official text
Points at issue
채권자를 폭행·협박하여 채무를 면탈함으로써 성립하는 강도죄에서 불법이득의사의 유무를 판단하는 방법
Unofficial English translation
Method of determining whether there is intent to obtain unlawful gain in the crime of robbery, which is established by assaulting or threatening a creditor to evade a debt
Summary of the holding
강도상해죄가 성립하려면 먼저 강도죄의 성립이 인정되어야 하고, 강도죄가 성립하려면 불법영득 또는 불법이득의 의사가 있어야 한다. 채권자를 폭행·협박하여 채무를 면탈함으로써 성립하는 강도죄에서 불법이득의사는 단순 폭력범죄와 구별되는 중요한 구성요건 표지이다. 폭행·협박 당시 피고인에게 채무를 면탈하려는 불법이득의사가 있었는지는 신중하고 면밀하게 심리·판단되어야 한다. 불법이득의사는 마음속에 있는 의사이므로, 피고인과 피해자의 관계, 채무의 종류와 액수, 폭행에 이르게 된 경위, 폭행의 정도와 방법, 폭행 이후의 정황 등 범행 전후의 객관적인 사정을 종합하여 불법이득의사가 있었는지를 판단할 수밖에 없다.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
형법 제333조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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