[보호감호(특정범죄가중처벌등에관한법률위반)][집31(3)형,151;공1983.9.1.(711),1212]
Whether embezzlement of stolen property is a crime of the same or similar type to larceny at night or at night (negative)
The crime of embezzlement of stolen property under the Social Protection Act can not be seen as a crime like or similar to night residence intrusion larceny or habitual residence intrusion larceny.
Article 6 (2) of the Social Protection Act
Applicant for Custody
Prosecutor
Seoul High Court Decision 82No1976,82No581 Decided December 3, 1982
The appeal is dismissed.
We examine the grounds of appeal.
Article 5(1)1 of the Social Protection Act provides that a person who has been sentenced to imprisonment without prison labor or heavier punishment for at least three times for a similar crime and whose total term of punishment is at least five years shall be sentenced to death penalty or a protective custody for ten years, or imprisonment with or without prison labor for life or for at least seven years within three years after he/she was sentenced to punishment for the same or partial execution of the final punishment, or Article 5(2)1 of the same Act provides that a person who has been sentenced to imprisonment for at least three years in total with prison labor for at least two similar crimes shall be sentenced to death penalty or for all or part of the final punishment, and shall be sentenced to punishment for imprisonment with or without prison labor for life or for at least five years if it is recognized that there is a danger of recidivism, the crime of the same or similar crime is merely the same or similar crime under each subparagraph of Article 6(2) of the same Act with or without prison labor for at least seven years, and the crime of larceny as provided for in the Criminal Act does not constitute an offense of the same or similar crime of larceny as at night.
Therefore, the court below's dismissal of a protective custody claim of this case on the ground that it cannot be seen as a crime of the same or similar kind of crime as the crime of embezzlement and larceny, and that the sum of the defendant's remaining criminal records does not reach three years, is just and there is no violation of law by misunderstanding the legal principles of Social Protection Act, and the appeal is dismissed. It is so decided as per Disposition with the assent
Justices Lee Il-young (Presiding Justice)