특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.
The grounds of appeal are examined.
1. Where a person who has been convicted of habitual offenders committed a crime by the same damp wall thereafter, and a new trial has commenced for the final judgment of conviction (hereinafter referred to as “prior crime”), and even if a subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment on the judgment subject to new trial, res judicata effect of the new judgment does not extend to the subsequent offense.
In addition, even where a judgment on a subsequent offense was first rendered and became final and conclusive prior to the pronouncement of a new judgment on a prior offense, res judicata of the judgment on the subsequent offense does not extend to the prior offense (see Supreme Court en banc Decision 2018Do20698, Jun. 20, 2019; Supreme Court Decision 2016Do756, Jul. 25, 2019). 2.
The record reveals the following facts.
1) The Defendant habitually committed the crime of intrusion upon residence on six occasions from January 1, 2012 to November 13, 2012 (hereinafter “instant preceding crime”) by committing the crime of larceny and theft (hereinafter “instant preceding crime”).
) On March 15, 2013, the Seoul Northern District Court revised the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “Special Crimes Aggravated Punishment Act”).
(ii)a judgment sentenced to two years of imprisonment, four years of stay of execution, and two years of probation (hereinafter referred to as “instant judgment subject to a retrial”) for a crime of larceny (thief).
(2) On November 25, 2014 and December 8, 2014, the aforementioned judgment was rendered final and conclusive on March 23, 2013, and the Defendant was sentenced to imprisonment with prison labor for one year and six months for the criminal facts that habitually stolen property at the Seoul Northern District Court District Court on November 30, 2015 (hereinafter “instant subsequent offense”), and the said judgment became final and conclusive on February 7, 2015.
3. Meanwhile, the Constitutional Court has applied Article 5-4 of the Specific Crimes Aggravated Punishment Act, which was a legal provision applicable to the instant judgment subject to a retrial.