[야간주거침입절도·절도][집28(2)형,5;공1980.7.15.(636),12898]
The judgment of night-time thief and thief and acquittal of a thief committed in a theft habit prior to the final judgment of larceny
Since larceny that was issued a final and conclusive judgment and the larceny and larceny committed prior to the final and conclusive judgment were committed in relation to the defendant's larceny, it is in relation to habitual night, night, and intrusion larceny, which is a single comprehensive crime under the substantive law. Therefore, the res judicata effect of the final and conclusive judgment on the above larceny is related to the crime of simple night, night, intrusion upon residence, larceny and larceny, but it also constitutes an offense of larceny, and thus, it is necessary to render a judgment of acquittal.
Article 326 of the Criminal Procedure Act, Articles 332 and 330 of the Criminal Act
Supreme Court Decision 69Do681 Decided June 24, 1969, Supreme Court Decision 74Do400 Decided March 26, 1974
Defendant
Attorney Park Jong-soo (Korean National Assembly)
Daejeon District Court Decision 80No56 delivered on March 19, 1980
The appeal is dismissed.
The forty days, from among those pending trial after the appeal, shall be included in the principal sentence.
The grounds of appeal by the defendant and his defense counsel are examined together.
According to evidence in the judgment of the court below, the criminal facts of the defendant in the judgment are legally recognized, and there is no error of misunderstanding the facts against the rules of evidence as in the theory of lawsuit, and according to the court below's legal reasoning, the defendant was sentenced to a suspended sentence of imprisonment for two years in October 1979, and the judgment became final and conclusive, among the criminal facts in the case of larceny and the charge of larceny and the charge of larceny in attached Form 2 which were prosecuted prior to the above final and conclusive judgment, it can be known that the criminal facts in the judgment of the court below and the criminal facts in annexed Form 2 of the above original judgment are in relation to habitual night, night, residential intrusion larceny, which are general crimes under substantive law, and therefore, since the res judicata effect of the final and conclusive judgment on the above larceny is related to the crime of larceny, but there is no error of law by misunderstanding the legal principles as to the above charges of larceny and the charges of larceny in attached Form 2 among the charges of larceny, and there is no error in the misapprehension of legal principles as to the above charges of larceny and the defendant's judgment.
Therefore, the appeal shall be dismissed and the forty days of detention days after the appeal shall be included in the principal sentence in accordance with Article 57 of the Criminal Act. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Yong-chul (Presiding Justice)