(b) Order of statutory mitigation and discretionary mitigation;

B. Article 56 of the Criminal Act stipulates the order of statutory mitigation in cases where the grounds for the reduction of punishment competes with each other, and according to this, it is reasonable to set the order of statutory mitigation in cases where there are grounds for statutory mitigation, and to impose discretionary mitigation in cases where there are grounds for statutory mitigation, it should take precedence over discretionary mitigation in cases where there are grounds for statutory mitigation, and it is reasonable to impose discretionary mitigation in cases where it is intended to impose a sentence lower than that of the punishment.

The number of detention days after the appeal shall be included in the calculation of the original sentence.

1. Reviewing the reasoning of the judgment below in light of the records, we affirm the court below's measures that recognized the crime of this case by comprehensively taking account of the evidence at the time of the testimony of Park Jong-chul, Lee Man-man, Kim Young-young, and Park Jong-hun. The court below's measures that acknowledged the criminal intent of robbery and that the defendant did not recognize that he was in a state of mental disorder due to drinking at the time of the crime, and there are no errors in the rules of evidence against the rules of evidence.

2. In the crime of habitual gambling, habitual gambling refers to the behavior of repeated gambling and refers to the nature of the actor. Therefore, in determining whether such behavior exists, the criminal records of gambling or the recovery of gambling are important data to determine whether it exists. As recognized by the court below, it is proper that the court below erred by misapprehending the legal principles of the defendant's criminal records or recovery of gambling, since the defendant was sentenced to a suspended sentence of ten months for the crime of habitual gambling on October 26, 1990 and the suspended sentence of eight months for the crime of bodily injury, etc. under the suspended sentence of eight months for the crime of habitual gambling on August 6, 192 and the execution of the sentence becomes null and void on August 6, 192 after the suspended sentence becomes null and void, and if he commits gambling again from around 22:00 on February 3, 1993 to 06:30 on the following day, the defendant's criminal records or recovery of gambling can be recognized.

3. Article 56 of the Criminal Act provides the order of aggravated mitigation in cases where the grounds for aggravated mitigation competes with each other, and according to this provision, the statutory mitigation is first and the last discretionary mitigation is made. Therefore, if there are statutory grounds for statutory mitigation, it should take precedence over discretionary mitigation. Furthermore, it is reasonable to reduce discretionary mitigation in the event that there are grounds for statutory mitigation, and it is reasonable to impose discretionary mitigation in the event that the court intends to impose a lower sentence than that of statutory mitigation (see Supreme Court Decision 91Do985, Jun. 11, 1991).

According to the records, the court of first instance selected the defendant's imprisonment for life with respect to the crime of robbery resulting in death by robbery and sentenced the defendant to imprisonment with prison labor for 12 years within the term of imprisonment with prison labor within the maximum of the most severe punishment for the crime of robbery resulting in death by robbery. The court below selected the defendant's imprisonment with respect to the crime of robbery resulting in death by robbery pursuant to Articles 38 (1) 1 and 50 of the Criminal Act after taking into account the fact that the defendant was punished for imprisonment with prison labor within 15 years within the term of imprisonment with prison labor for discretionary mitigation, taking into account the circumstances of the crime and the fact that the defendant voluntarily surrenders himself, unlike the court of first instance, the court below's discretionary mitigation without prison labor goes against the order of aggravated mitigation of punishment. However, the court below tried to sentence a higher punishment than the lowest sentence of the first mitigated punishment, and thus, this does not affect the result of this case.

4. Examining the facts of the offense and sentencing acknowledged by the court below through the record, even if considering the point of the theory of the lawsuit, it cannot be deemed that the amount of punishment imposed by the court below against the defendant is extremely unreasonable, considering the circumstances in which the defendant voluntarily surrenders, and the court below cannot pronounce a sentence heavier than that of the court of first instance on the ground that the defendant voluntarily surrenders himself. Therefore, all arguments are without merit.

Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)