특정범죄가중처벌등에관한법률위반(절도)등
The judgment of the first instance is reversed.
A defendant shall be punished by imprisonment for not less than three years and six months.
1. Summary of grounds for appeal;
A. Regarding the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) among the facts charged in the instant case, the first instance court convicted the Defendant of this part of the charges even though this part of the charges was not attributable to the Defendant’s theft habit. In this regard, the first instance court erred by misapprehending the facts or misapprehending the legal principles on the habitual nature of the larceny, thereby adversely affecting the conclusion of the judgment. 2) As to the charge of obstruction of performance of special duties among the facts charged in the instant case, G did not notify the Defendant of the summary of the facts charged, the reason for arrest, and the right to assistance of counsel before arresting the Defendant, and thus his arrest was not lawful performance of official duties. However, the first instance court which convicted him of this part of the facts charged erred by misapprehending the facts
B. The sentence of imprisonment (four years of imprisonment) imposed by the first instance court on the defendant is too unreasonable.
2. Determination
A. Regarding the assertion of mistake of facts or misapprehension of legal principles, habitual larceny in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to a habit that repeatedly commits the larceny crime. It is necessary to comprehensively consider the existence of criminal records in the same kind of crime and the frequency, period, motive, means, and method of the crime (see, e.g., Supreme Court Decisions 2007Do2956, Jun. 28, 2007; 2008Do1150, Feb. 12, 2009). The following circumstances recognized by the evidence duly adopted and investigated by the first instance court, namely, ① the Defendant was sentenced to suspended execution for four times during the period from the order of March 26, 2011 to April 26, 2011, on the ground that the Defendant committed a special larceny, special larceny, larceny, and attempted larceny, and committed an attempted larceny.