특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
1. Summary of grounds for appeal;
A. Although it is evident that the crime of this case was caused by the realization of the Defendant’s theft habitor, the lower court determined otherwise by misapprehending the legal doctrine regarding habituality, or by mismisunderstanding the facts.
B. The lower court’s sentence of unreasonable sentencing (one year and six months of imprisonment) is too uneased and unreasonable.
2. Determination of misconception of facts or misapprehension of legal principles as to habituality
A. The lower court determined as follows.
It is recognized that the defendant had a lot of records of punishment for the same crime, and that he/she committed the crime of this case only about six months after the final release.
However, after being released, the Defendant was diagnosed to the effect that the left eye can be a real name if he did not perform an operation, and the Defendant appears to have committed the instant crime in a contingent situation where it is difficult to prepare surgery expenses and economic difficulties.
According to this, it is difficult to conclude that the crime of this case is the realization of the theft habit, and there is no evidence to acknowledge it.
(However, the court below found the defendant guilty of larceny under Article 5-4 (5) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes included in the facts charged.
The judgment of this court is the (i) habituality of a crime refers to any mistake of a criminal and the tendency of a crime, which is not the nature that forms the essence of the act, but the character that forms the character of the offender. Thus, whether habituality is habitual shall be determined by comprehensively taking into account various circumstances, such as the age, character, occupation, environment, motive, method and place of the crime, time interval with the crime committed before, and similarity with the contents of the
(see, e.g., Supreme Court Decisions 2007Do3820, 2007Do48, Aug. 23, 2007; 2007Do10620, Feb. 14, 2008). Sheet, Sheet, the lower court, and the first instance court, based on these legal principles, have duly adopted and investigated.