[범죄단체조직·범죄단체가입·상습특수절도피고사건][고집1976형,281]
Whether res judicata effect of a final and conclusive judgment of a person who was prosecuted for habitual special larceny extends to the facts charged in the event that the final and conclusive judgment is made for special larceny after the date of offense.
Where a person prosecuted for habitual special larceny obtains a final judgment due to special larceny after the date on which he/she was prosecuted, the final judgment and the facts charged constitute one crime that covers habitual special larceny, and the res judicata effect of the final judgment shall be sentenced to acquittal by being excessive to the above facts charged.
Articles 331 and 332 of the Criminal Act; Article 326 of the Criminal Procedure Act
Supreme Court Decision 70Do156 delivered on March 24, 1970 (Supreme Court Decision 5985Da 5985 delivered on February 14, 1978, Decision 77Do3564 delivered on February 14, 1978
Defendant
Defendant
Seoul District Criminal Court (76 High Court Decision 192)
The judgment of the court below is reversed.
A person shall be punished by imprisonment with prison labor for not less than two years, and imprisonment with prison labor for not less than one year and six months for a crime set forth in Articles 2 and 3 of the Judgment.
The number of detention days prior to the pronouncement of the judgment of the court below shall be included in the above punishment for the first crime as shown in the judgment.
The summary of the grounds for appeal by the defendant is as follows: First, although the defendant was not admitted to a criminal organization aimed at special larceny, which is the second criminal charge in the indictment, among the facts charged in the indictment, the court below found the defendant guilty as to the above part; second, the judgment of the court below is erroneous as affecting the judgment; second, the determination of the sentence imposed by the court below is too unreasonable.
Therefore, first of all, the first point of appeal is examined, and the various evidences adopted by the court below after lawfully examining the evidence (in particular, whether the defendant led to the confession of the crime in the trial court) are reviewed in light of the records, the second criminal facts of the defendant's decision can be recognized. Therefore, the grounds for appeal as to the mistake of facts cannot be accepted.
Next, prior to the judgment on the grounds of appeal on unfair sentencing of the defendant, first of all, we examine the facts charged by the defendant. Since the defendant is habitually sentenced to one year imprisonment from the appellate division of the Chuncheon District Court on January 9, 1975 to a special larceny, and the facts charged by the defendant have become final and conclusive around that time, the defendant and the non-indicted shall have access to the victim's name-free person, the defendant and the non-indicted in Seoul to a theft of KRW 600,000 in cash owned by the above victim, and the defendant and the non-indicted in his name was stolen over 34 times until June 6, 1974 as shown in the separate sheet, and according to the statement of the criminal judgment bound by the chief prosecutor's response to the criminal records from the court below and a certified copy of the criminal judgment bound by the records, the court below's conviction and the above facts charged constitute a crime of habitual larceny, and thus, shall not have any influence on this part of the above facts charged.
Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act, and the member is again decided.
(Criminal Facts and Summary of Evidence)
Among the facts charged below, the criminal facts of the defendant who is admitted as a party member and the summary of the evidence are as shown in each corresponding case of the judgment below. Thus, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
(Application of Acts and subordinate statutes)
In the so-called "crimes' organization and accession" of the defendant's holding, each of the crimes of Articles 114 (1) and 331 (2) 1 of the Criminal Code, while prone special larcenys are concurrent crimes of Articles 332 and 331 (2) 1 of the Criminal Code, and the crime of organization of the first crime and special larceny of which final and conclusive judgment had been made, are concurrent crimes of the latter part of Article 37 of the Criminal Code. Since the crime of joining the crime of Article 2 of the decision and the habitual special larceny of Article 3 of the decision are concurrent crimes of the former part of Article 39 (1) of the Criminal Code, the punishment shall be determined separately for the crimes of Articles 38 (1) 2 and 50 of the Criminal Code, and the crime of Articles 2 and 3 of the decision shall be concurrent crimes of Articles 38 (1) and 3 of the same Code, and the punishment of imprisonment of Article 15 of the Criminal Code shall be included within the sentence of imprisonment of Article 17 of the above.
Acquittal:
Of the facts charged, the defendant habitually committed a theft over 34 occasions as shown in the separate sheet, including: (a) the non-indicted person and the non-indicted person who was sentenced to imprisonment with prison labor for one year from the appellate division of the Chuncheon District Court on January 9, 1975; and (b) the non-indicted person's access to the victim's name at the office of Rocheon-si in Seoul, the defendant and the non-indicted person committed a theft of 600,000 won in cash from the above victim's name in Seoul; and (c) the defendant and the non-indicted person committed a theft of 34 times until June 6, 1974; and (d) as seen above, the above facts charged constitute a single-year comprehensive crime with the criminal facts finalized after being sentenced to imprisonment with prison labor for special larceny from the appellate division of the Chuncheon District Court on April 9, 1975; and (d) the above acquittal part is charged with a single comprehensive special larceny and a single comprehensive crime. Therefore, the judgment of acquittal shall not be acquitted.
It is so decided as per Disposition for the above reasons.
[Attachment List omitted]
Judges Kim Sang-won (Presiding Judge)