[특정범죄가중처벌등에관한법률위반(절도)·보호감호][공1984.5.1.(727),669]
Criteria for recognition of habitualness of larceny
In order to recognize habitualness in the case of larceny, it is several times of larceny, and the means, method and nature are the same, and the crime is limited to the case where the crime is realized of larceny, and the crime is committed under contingent motive or urgent economic circumstances. Therefore, if it cannot be viewed as a crime of larceny, it shall not be considered a habitual larceny. In order to recognize habituality based on the facts of the previous offense for which the passage of time has passed, there should be considerable special circumstances to recognize that the crime is the cause of the defendant's habit.
Article 332 of the Criminal Act, Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes
Supreme Court Decision 81Do3133 Decided January 19, 1982
Defendant
Defendant and Appellant for Custody
Attorney Ma-yang
Daegu High Court Decision 83No1226,83No289 delivered on December 13, 1983
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal by the defendant and the respondent for defense (hereinafter referred to as the "defendants") and defense counsel are examined.
1. As to whether a habitual offender is:
If the evidence cited by the judgment of the court of first instance as cited by the court below is compared with the records, no error is found in the measures that recognized the criminal facts of the larceny in the judgment of the court of first instance, and no appeal can be adopted to the effect that the defendant denies the criminal intent of the larceny.
However, in order to recognize habituality in larceny, it is limited to a case where the crime is deemed to have been committed in addition to the fact that the crime was committed several times and the means, method and nature are the same, and since such crime was committed under contingent motive or urgent economic circumstances, if it cannot be deemed to have been committed, it shall not be deemed to have been habitually stolen, and in order to recognize habituality on the basis of the past offense for which the date has passed, there should be considerable special circumstances to recognize that the crime was committed as the origin of the Defendant's habits (see Supreme Court Decision 81Do3133, Jan. 19, 1982). However, according to records, it is difficult to find that the facts of the past offense, such as larceny, which were recognized by the court below, were committed before and after the 13-year period of imprisonment with prison labor, and that it is hard to see that the Defendant had the nature of the past offense and the facts, which were committed after the lapse of 5 years, and that it is hard to see that the Defendant had the nature of the Defendant's mind that he had been habitually supported by his labor.
2. We examine ex officio the following facts: (a) In light of the motive, means, and methods of the crime of this case recognized earlier; (b) relationship with the victim indicated in the records; (c) friendlyness of the crime; (d) the environment and occupation; (c) the Defendant’s age; and (d) the Defendant’s criminal record and the period of the crime of this case, etc., it is difficult to readily conclude that the lower court, on the premise that the crime of this case is habitually committed, found the risk of re-offending, based on the premise that the crime of this case is likely to be habitually committed
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kang Jong-young (Presiding Justice)