특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
1. Summary of grounds for appeal;
A. The court below erred by misapprehending the legal principles as to habitual larceny, although the defendant did not commit the instant case with a habit of larceny, the court below's judgment was erroneous by misapprehending the legal principles as to habitual larceny.
B. In light of the overall sentencing conditions of the instant case, the lower court’s imprisonment (one year and six months of imprisonment) is too unreasonable.
2. In determining the misapprehension of legal principles as to the assertion of larceny, if habituality is to be recognized, it shall be limited to the case where the crime was committed in addition to the fact that the crime was committed several times, and the means, method, and character are the same, and the crime was committed under contingent motive or urgent economic circumstances, and thus, if it cannot be viewed as a crime of larceny, it shall not be recognized as habitual larceny. In order to recognize habituality on the basis of the previous offense for which the passage of time has passed, there is a considerable special circumstance to recognize that the crime was committed as a crime of larceny.
I would like to say.
(See Supreme Court Decision 84Do35, 84Do3 delivered on March 13, 1984). Comprehensively taking account of the following circumstances revealed by the evidence duly adopted and investigated by the lower court and the lower court, the Defendant did not seem to have a habit of larceny at the time of the instant case.
① On February 15, 2013, the Defendant was sentenced to imprisonment with prison labor for special larceny, etc. at the Seoul Eastern District Court for six months, and only one time of the same kind of force.
② The Defendant’s same force and the instant crime are the theft of the cell phone of the victim who was divingd in the leleb or the surface of the water, and the method of the crime is similar. However, in light of the circumstances, the instant crime is not planned and organized, but it appears that it was contingent and shocked to prepare living expenses after release.
③ The Defendant sought the instant letter of apology in order to steal a mobile phone.