특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
1. Summary of grounds for appeal;
A. Since each of the crimes of this case committed by the Defendant by misapprehending the legal principles is a crime committed during the repeated crime period, it does not constitute the requirements for probation under the Criminal Act.
Nevertheless, the judgment of the court below which sentenced the suspension of the execution of imprisonment to the defendant is erroneous in law.
B. The sentence imposed by the lower court (two years of imprisonment, four years of suspended execution, four years of probation, community service, 160 hours of imprisonment) is too uneased and unreasonable.
2. The proviso of Article 62(1) of the Criminal Act regarding the assertion of misapprehension of the legal doctrine provides that “Where a sentence is imposed for a crime committed during the period of three years after the judgment sentencing imprisonment without prison labor or heavier punishment was finalized or exempted, the execution of the sentence shall not be suspended.”
According to each evidence duly adopted and examined by the lower court, the Defendant was sentenced on November 14, 2013 by the Suwon District Court to imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. on December 30, 2014; and the execution of the sentence was terminated on December 30, 2014; and the Defendant committed each of the instant crimes around October 2, 2015 and around February 3, 2016, for which three years have not passed since the completion of the execution of the said sentence.
Therefore, in a case where a sentence is imposed on each of the crimes of this case, the execution of the sentence cannot be suspended in accordance with the above provisions of the Criminal Act. However, the judgment of the court below which sentenced the suspension of the execution of imprisonment for each of the crimes of this case is erroneous in the misapprehension of legal principles as to the requirements for the suspension of execution, which affected the conclusion of the judgment
3. If so, the prosecutor's appeal on the ground of misapprehension of legal principles is with merit. Thus, without examining the prosecutor's argument of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act, and the following is again decided
[Judgment of multiple times] Criminal facts and evidence.