특정범죄가중처벌등에관한법률위반(강도)등
The prosecutor's appeal is dismissed.
1. Regarding the defendant's attempted robbery, the court below held that the crime of this case was committed by the robbery of the defendant, taking into account the fact that the defendant had a large number of the same kind of records as the applicable law to the crime of this case, but the court below excluded habitualness and only the attempted robbery was established on the ground that the crime of this case was committed and the crime of robbery was committed by living. Thus, the court below erred by misapprehending the legal principles as to habituality.
2. Determination
A. The recognition of habituality cannot necessarily be the basis for the acknowledgement of habituality only with the previous facts which have been committed several times, and there is a reasonable circumstance that the act of forcibly taking into account the criminal facts and the facts of the previous crimes is not unreasonable to recognize it as the creation of the robbery.
If the crime is committed in a contingent motive or in an imminent situation and cannot be seen as the occurrence of the robbery of ordinary cattle, the habituality may not be recognized.
(2) If the crime of attempted robbery in this case was committed by robbery, then the crime of attempted robbery in this case constitutes robbery under Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, including robbery and robbery reserve amounts to an aggravated punishment by up to twice the long-term or short-term or short-term or imprisonment under Articles 2(1)5 and 3 of the Act on Special Cases Concerning the Punishment of Specific Crimes, the statutory punishment should be imposed in consideration of the following: (a) the crime of attempted robbery in this case was committed by robbery; (b) the crime of attempted robbery in this case; and (c) the crime of robbery reserve amounts to an aggravated punishment by up to 20 years and less than 50 years, life imprisonment and death penalty; and (d) the punishment should be mitigated by mitigation as it leads to a minimum of 10 years, even if the punishment was imposed on the defendant’s attempted robbery.
B. The court below stated the judgment in detail.