상습특수절도
The judgment below is reversed, and the case is remanded to the Seoul Northern District Court.
The grounds of appeal are examined.
1. Where a person who was convicted of habitual offenders committed a crime by the same damp wall thereafter, and a new trial has commenced for the final judgment of conviction (hereinafter earlier, a crime which became the object of a new trial is referred to as "prior crime", and a crime committed later by the same damp wall is referred to as "after the crime"), even though the subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment on the judgment subject to new trial, res judicata effect of the new judgment does not extend to the subsequent offense.
In addition, even where a judgment on a subsequent offense was first rendered and became final and conclusive prior to the pronouncement of a new judgment on a prior offense, res judicata of the judgment on the subsequent offense does not extend to the prior offense (see Supreme Court en banc Decision 2018Do20698, Jun. 20, 2019; Supreme Court Decision 2016Do756, Jul. 25, 2019). 2.
The record reveals the following facts.
(1) On October 15, 2010, the Defendant habitually stolen another’s property on June 22, 2010 and June 30, 2010 (hereinafter “instant prior crime”), sentenced the Seoul Northern District Court to a judgment (hereinafter “instant judgment subject to a retrial”) sentenced to imprisonment of one year and six months for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “Special Crimes Aggravated Punishment Act”), and the said judgment became final and conclusive on October 23, 2010.
(2) On June 11, 2015, the Defendant was sentenced to imprisonment with prison labor for one year and eight months for a crime that habitually steals another’s property at the Seoul Central District Court on seven occasions from October 28, 2013 to December 9, 2013 (hereinafter “instant subsequent offense”), and the judgment became final on August 12, 2015.
(3) Meanwhile, Article 329 of the Criminal Act, which is a legal provision that was applied to the instant judgment subject to a retrial, is related to Article 5-4(1) of the Specific Crimes Aggravated Punishment Act.