[특정범죄가중처벌등에관한법률위반(절도)피고사건][하집1986(1),380]
Whether or not a criminal conviction and a sentence under Article 5 (1) of the Social Protection Act can be deemed to have been imposed for a criminal offense invalidated and invalidated.
In the event a sentence becomes invalidated, the legal effect of the sentence becomes extinct in the future, and the sentenced person shall not be treated disadvantageously after the sentence becomes invalidated, so it cannot be treated as having been sentenced to imprisonment under Article 5 of the Social Protection Act on the basis of the fact that the sentence was executed after the sentence became invalidated.
Article 5 of the Social Protection Act, Article 7 of the Act on the Lapse, etc. of Punishment
[Plaintiff-Appellant] 83Do144, 83Ga35 decided Apr. 26, 1983 (Article 5(2)(23) of the Social Protection Act, No. 31 ② 1706 No. 933 decided Apr. 26, 198
Defendant
Defendant and Appellant for Custody
Daejeon District Court (85 Gohap254, 85 Gohap31) in the first instance trial
We reverse the original judgment.
A defendant shall be punished by imprisonment for two years.
One hundred days from among the detention days before the original sentence is rendered shall be included in the above sentence.
Three Myeonk-blades seized, one tobacco paper (No. 1 and 2) shall be confiscated from the accused.
The prosecutor's request for protective custody is dismissed.
The summary of the grounds for appeal by the defendant and the respondent (hereinafter only referred to as the defendant) is sufficient to recognize the crime of larceny committed by the court below, taking into account the following facts: although the defendant was on board the same bus as the victim, the victim was on the center part of the bus, and the defendant was on the rear part of the bus, and despite the fact that there was no time limit for retailing money from the family money of the victim, there was an error of law recognizing the fact of theft in the original judgment which recognized the fact of theft; therefore, the court below's decision by the court below and the prosecutor's office of the victim, who was the victim, who was the victim, who was the witness of the defendant and the victim who was trying to arrest the defendant, and the witness of the non-indicted 1 and the police, who was the victim who was the pilot of the crime and the defendant, who was informed of the fact
Next, prior to the determination of the assertion of unfair sentencing by defense counsel, the defendant was sentenced to punishment by larceny five times between 1961 and 1967, but all of them were 19 years or more, and he was sentenced to one year of imprisonment for the larceny of 1978 on November 1, 1983. Thus, the court below held that the defendant committed the larceny of 1961 and 1967 on a 30-year period from the above 1961 to the 1967 period, and it was hard to conclude that the defendant was habitually punished by larceny of 1983 in light of the fact that he committed the larceny of 1978 year from the above 1961 to the 1967 period without any error. However, the court below held that the defendant was habitually punished by imprisonment for the 1983 year period, and it was hard to conclude that the defendant was habitually punished by the 7 years period of larceny of 197 years prior to the crime of this case.
Furthermore, according to Article 7 subparag. 1 of the Act on the Lapse of Protective Custody, etc., the sentence becomes invalidated after the lapse of ten years after the execution of imprisonment without prison labor or more severe punishment without being sentenced to suspension of qualification or more. If a sentence becomes invalidated, the legal effect based on the sentence becomes extinct in the future and the convicted prisoner is not treated at any disadvantage thereafter. Thus, it cannot be deemed that he was sentenced to a punishment under Article 5 of the Social Protection Act on the premise that he was sentenced to imprisonment after the sentence becomes invalidated and executed (see Supreme Court Decision 83Do14, 83Do35, Apr. 26, 1983). As seen above, since the defendant was sentenced to imprisonment with prison labor for larceny in 1967 and the execution of the sentence is terminated, and the court below should have rejected the defendant's request for protective custody including the above provision of Article 15 years prior to the expiration of the sentence without being sentenced to imprisonment with prison labor for 1983 years or more, and the court below should have rejected the defendant's request for protective custody before 196 years or more.
Therefore, according to Article 364(2) and (6) of the Criminal Procedure Act and Article 42 of the Social Protection Act, the appeal by the defendant is justified, and the judgment below is reversed, and it is again decided as follows.
The criminal facts and the evidence of the defendant's criminal facts are cited as they are, except where "Habitual" is deleted from the criminal facts committed at the original time and the judgment of habituality is excluded from the summary of the evidence.
The so-called the judgment of the defendant falls under the category of Article 392 of the Criminal Act, and since the defendant has a criminal record of special larceny in the judgment that corresponds to a repeated crime, the defendant shall be punished by imprisonment within the scope of the term of punishment where a repeated crime is committed pursuant to Article 35 of the same Act, and under Article 57 of the same Act, 110 days out of the number of detention days prior to the original sentence shall be included in the above punishment, and under Article 57 of the same Act, 3 knive knives (No. 1) and knives (No. 2) and knives (No. 1) shall be included in the number of detention days prior to the original sentence, and they shall be confiscated under Article 48 (1) 1 of the same
As seen in the above reversal reasons, the defendant's request for protective custody is dismissed in accordance with Article 20 (1) of the Social Protection Act, since it is not recognized that the defendant was sentenced to a sentence under Article 5 (1) 1 of the Social Protection Act, and thus, the prosecutor's request for protective custody is dismissed.
It is so decided as per Disposition for the above reasons.
Judges Lee Jae-won (Presiding Judge)