특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
1. Summary of grounds for appeal;
A. Erroring of facts, misunderstanding of legal principles, cash is an object of larceny, and the defendant did not have any intention to commit larceny.
B. At the time of committing the instant crime, the Defendant was in a state of mental suffering from mental illness and a state of mental suffering from the exploitation.
C. The lower court’s sentence of unreasonable sentencing (two years of imprisonment) is too heavy.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for appeal for ex officio determination.
A prosecutor applied for amendments to a bill of amendment of the Criminal Act with regard to the name of the crime as "Habitual larceny" in "Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes," and the applicable provisions of the Act to "Article 5-4 (5) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes" and "Articles 342 and 329 of the Criminal Act," respectively, and the same court permitted the amendment, thereby changing the subject of the judgment.
Therefore, the judgment of the court below is no longer maintained.
However, even if the judgment of the court below has such reasons as above, the defendant's assertion of mistake, misunderstanding of legal principles, and mental and physical disability is still subject to the judgment of the court.
B. As to the assertion of mistake of facts or misapprehension of legal principles, a theft generally refers to the removal of the property possessed by another person against the will of the possessor, and the removal of the property from one’s own or a third party’s possession. Whether a certain property is occupied by another person or not shall be determined in consideration of the intention of control as a subjective element in addition to the scope of management as an objective element or the possibility of factual management, and ultimately, by considering the shape of the pertinent property and other specific circumstances,
(See Supreme Court Decision 2008Do3252 Decided July 10, 2008). According to the above legal doctrine, the health care unit and the lower court’s judgment regarding the instant case are the Defendant.