[특정범죄가중처벌등에관한법률위반,강도,강도상해][집34(1)형,402;공1986.4.15.(774),579]
Punishment cases where a final and conclusive judgment has been made on a separate crime in the middle of a single comprehensive crime;
The so-called comprehensive crime, such as habitual offenders, should not be divided into two comprehensive crimes in the middle of the final judgment, even though the final judgment on the crime of different species has been made, and in this case, it should be dealt with as a crime after the final judgment.
Article 37 of the Criminal Act
Defendant
Defendant
Attorney Song-sung et al.
Daegu High Court Decision 85No1564 delivered on December 5, 1985
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal by a state appointed defense counsel are examined.
According to the reasoning of the judgment of the court below, although the defendant was sentenced to a fine of 50,00 won for a violation of the Punishment of Violences, etc. Act at the Busan District Court on December 20, 1984 and the judgment became final and conclusive February 17, 1985, the court of first instance did not divide the crimes of this case committed before and after the above final and conclusive judgment into two separate punishments, but imposed one punishment on all of the crimes of this case by considering the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (special robbery) and the concurrent crimes of robbery (the former part of Article 37 of the Criminal Act) and Article 37 (1) of the Criminal Act as stated in the judgment of the court below, since the defendant was sentenced to a punishment for a concurrent crime under the latter part of Article 37 (1) of the Criminal Act and Article 37 (2) of the Criminal Act and Article 37 (1) of the Criminal Act as stated in the judgment of the court below, the first instance court's judgment constitutes a concurrent crime under Article 17 (2) of the Criminal Act.
However, the so-called comprehensive crime, such as habitual crimes, is not divided into two separate crimes in the middle, even though the final judgment on a separate crime has been made, and in such a case, it should be dealt with as a crime after the final judgment. The court below divided the crimes of Articles 2 and 3 of the judgment before and after the final judgment, and treats the crimes of Article 2 as concurrent crimes of the latter part of Article 37 of the Criminal Act, and treats the crimes of Article 37 of the Criminal Act again as concurrent crimes of the former part of Article 37 of the Criminal Act. Ultimately, the court below erred by misapprehending the legal principles on concurrent crimes with habitual crimes, which affected the conclusion of the judgment, and therefore, the argument is reasonable.
Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court which is the original court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices O Sung-sung(Presiding Justice)