[폭력행위등처벌에관한법률위반·상해·폭행][공2002.1.15.(146),244]
[1] Whether the crime of violence committed by carrying a deadly weapon is one of the comprehensive crimes of habitual violence under Article 2 (1) of the Punishment of Violences, etc. Act between the crime of violence and the crime of non-Carrying a deadly weapon (negative)
[2] Whether a summary order is also included in the "judgment" under the latter part of Article 37 of the Criminal Code (affirmative)
[1] Article 3 (3) of the Punishment of Violences, etc. Act separately provides that a person who habitually commits a crime under Article 2 (1) of the same Act by carrying a deadly weapon or dangerous article shall be punished by imprisonment with prison labor for life or for not less than seven years. Thus, each crime of violence committed by carrying a deadly weapon shall not be deemed to have a relation between each charge of habitual violence under Article 2 (1) of the same Act as stated in the judgment of the court below that was acquitted by the court below, and each charge of violence committed by carrying a deadly weapon.
[2] According to the latter part of Article 37 of the Criminal Code, the crime for which judgment has become final and conclusive and the crime for which judgment has become final and conclusive shall be concurrent crimes, and the "judgment" in this context includes a summary order.
[1] Articles 2(1) and 3(3) of the Punishment of Violences, etc. Act, Article 37 of the Criminal Act, Article 326 subparag. 1 of the Criminal Procedure Act / [2] Article 37 of the Criminal Act, Article 457 of the Criminal Procedure Act
[1] Supreme Court Decision 98Do1579 delivered on July 14, 1998 / [2] Supreme Court Decision 80Do537 delivered on April 13, 198 (Gong1982, 539) Supreme Court Decision 90Do952 delivered on July 10, 1990 (Gong1990, 1747) Supreme Court Decision 99Do116 delivered on April 9, 199 (Gong1999Sang, 967) and Supreme Court Decision 9Do640 delivered on April 13, 199 (Gong199Sang, 967) and Supreme Court Decision 9Do640 delivered on April 13, 199 (Gong199, 967) and Supreme Court Decision 2001Do203131 delivered on August 24, 2001 (Gong201304Ha2314, Aug. 24, 2001)
Defendant
Defendant
Attorney Jin-sik
Chuncheon District Court Decision 2001No643 delivered on October 12, 2001
The appeal shall be dismissed. 18 days out of detention days after the appeal shall be included in the penalty for the crimes as prescribed in subparagraphs 1 through 3 in the original judgment.
The grounds of appeal are examined.
1. On the first ground for appeal
Article 2 (1) of the Punishment of Violences, etc. Act separately provides that a person who habitually commits any crime listed in Article 2 (1) of the same Act by carrying a deadly weapon or dangerous object shall be punished by imprisonment with prison labor for life or for not less than seven years. Thus, each crime of violence committed by carrying a deadly weapon shall not be deemed a single comprehensive crime of habitual violence as provided in Article 2 (1) of the same Act between each of the facts charged in the decision of the court below that acquitted by carrying a deadly weapon and each of the facts charged in the decision of the court below that the acquittal was rendered by the court below (see Supreme Court Decision 98Do1579 delivered on July 14, 1998). The records do not recognize that the crime of habitual violence is committed by carrying a dangerous weapon with the defendant, and therefore, the court below's measures that punish each of the above crimes committed by carrying a deadly weapon at night as concurrent crimes as provided in Article 3 (2) of the same Act are justifiable, and there is no violation of a misapprehension of legal principles as to habitual crimes or daily crimes as alleged in the grounds for appeal.
2. On the second ground for appeal
According to the latter part of Article 37 of the Criminal Act, a crime for which a judgment has become final and conclusive and a crime committed prior to the final and conclusive judgment shall be deemed concurrent crimes, and the "judgment" in this context shall include a summary order (see, e.g., Supreme Court Decision 2001Do2832, Aug. 24, 2001). Accordingly, the argument in the grounds of appeal against the lower judgment cannot be accepted from a different view.
3. Therefore, the appeal shall be dismissed, and 18 days of detention days after the appeal shall be included in the punishment against the crimes of Articles 1 through 3 as stated in the judgment below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Cho Cho-Un (Presiding Justice)