[특수절도][집17(1)형,094]
In the application of the provisions against disadvantageous changes, where the seriousness is taken between the regular and irregular types, the minimum short-term type and the regular type itself from among the irregular types shall be compared.
In the application of the provisions against disadvantageous changes, where the seriousness is bridgeed between the regular and irregular types, the shortest and the regular one from among the irregular types shall be compared.
Article 368 of the Criminal Procedure Act
Supreme Court Decision 59 Form242 Decided August 21, 1959
Defendant
Seoul Criminal Court Decision 68No1372 delivered on December 20, 1968
The original judgment and the first instance judgment shall be reversed.
A defendant shall be punished by imprisonment for six months.
80 days of detention prior to the pronouncement of judgment in the first instance shall be included in the original sentence.
We examine the Defendant’s grounds of appeal.
According to the records, since the defendant filed an appeal and the judgment of the court of first instance was reversed, the number of detention days prior to the sentence of the court below after filing an appeal is naturally included in the principal sentence in accordance with Article 482 (1) 2 of the Criminal Procedure Act, so there is no argument that the number of detention days prior to the sentence of the court below after filing an appeal is too excessive and that the number of detention days prior to the sentence of the court below is too excessive.
However, according to the records of this case, in the first instance court, the defendant who is a minor shall be punished by imprisonment for a short term of six months and one year, and the court below shall reverse the judgment of the first instance court against the defendant who reaches the age of majority by the defendant's appeal and sentenced a regular sentence of one year. However, in applying Article 368 of the Criminal Procedure Act to the prohibition of disadvantageous alteration to the disadvantage of Article 368 of the Criminal Procedure Act, in case where the gravity between a regular and irregular sentence is taken, it shall be compared with the short term and the regular sentence itself during the irregular term (see Supreme Court Decision 59Do242 delivered on August 21, 1959). Thus, the court below's reversal of the first instance court and the judgment of the first instance court shall not be exempted since it erred by misapprehending the legal principles as to the prohibition of disadvantageous alteration to the disadvantage of the defendant.
Therefore, the main source is self-satisfy.
Criminal facts and evidence admitted by the principal court are the same as that of the first instance judgment, and they are accepted in its entirety.
In the judgment of the court below, the thief is a special larceny under Article 329 of the Criminal Act, which corresponds to Article 331(2) and (1) of the Criminal Act. Since the thief is a repeated crime, each repeated crime is added pursuant to Article 35 of the Criminal Act, and the former part of Article 37 of the Criminal Act is concurrent crimes under the former part of Article 37 of the Criminal Act. Since Articles 38(1)2 and 50 of the Criminal Act provide aggravated punishment for concurrent crimes with severe special larceny under Article 38(1)2 and Article 50 of the Criminal Act and there are reasons for taking into account the circumstances, the defendant shall be punished by imprisonment with prison labor for up to six months within the term of punishment mitigated under Articles 53 and 55(1)3 of the Criminal Act, and 80 days out of the number of detention days prior to the pronouncement of the judgment of the court of first instance shall
It is so decided as per Disposition by the assent of all participating Justices.
Judge Do-dong (Presiding Judge) of the Supreme Court