폭력행위등처벌에관한법률위반(상습공갈)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
1. The decision of the court below on the gist of the reasons for appeal (two years of imprisonment) is too unreasonable.
2. “Habitualness” under Article 2(1) of the Punishment of Violences, etc. Act means not only the habitualness between the crimes listed in each subparagraph of the same paragraph, but also the habit of violence that covers all the crimes listed in each subparagraph of the same paragraph.
Therefore, if a person with the above habitive behavior commits a different number of crimes under each of the Criminal Code listed in each of the subparagraphs of Article 2(1) of the Punishment of Violences, etc. Act, each of the above acts constitutes a blanket crime of habitual violence under the most serious statutory penalty of each of the subparagraphs.
(see, e.g., Supreme Court Decision 2012Do6815, Aug. 17, 2012). However, the lower court deemed the crime of violating the Punishment of Violences, etc. Act (Habitual Bribery) and the crime of assault as indicated in the judgment as concurrent crimes under the former part of Article 37 of the Criminal Act and added punishment accordingly.
However, in light of the above legal principles, since the crime of violation of the Punishment of Violence, etc. Act and the crime of assault due to habitual violence constitutes a comprehensive crime of habitual violence at the time of the judgment of the court below, the court below erred in the misapprehension of legal principles in regard of each of the above crimes as substantive concurrent crimes, and affected the conclusion of the judgment.
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3. Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the judgment below is delivered following the pleadings.
Criminal facts
On March 22, 2010, the Defendant was sentenced to two years and six months of imprisonment with labor for a violation of the Punishment of Violences, etc. Act (a deadly weapon, etc.) at the Busan District Court on March 22, 2010, and completed the enforcement of the sentence on May 26, 2012, and was punished for violent crimes such as the Punishment of Violences, etc. Act, the crime of bodily injury, and the crime of obstruction of performance of official duties.
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