Article 2 (2) of the Punishment of Violences, etc. Act is a requirement for the application of this Act.

The provisions of Article 2 (2) of the Punishment of Violences, etc. Act shall also apply to cases where one of the crimes listed in paragraph (1) of the same Article is committed at night or where two or more persons jointly commit a crime, and such habitual crimes do not exist.

Article 2(2) of the Punishment of Violences, etc. Act

Supreme Court Decision 77Do528 Delivered on April 12, 1977

Defendant

Defendant

Attorney Park Jong-woo

Gwangju High Court Decision 85No256 delivered on August 14, 1985

The appeal is dismissed.

The twenty days of detention days prior to the rendering of judgment shall be included in the original sentence.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

According to the evidence that the court of first instance affirmed by the court below, there is no error of law by either failing to exhaust all the deliberations in the process of evidence preparation and fact-finding, or misunderstanding of facts by failing to exhaust all the deliberation, and there is no reason to suspect that the crime in the judgment of the court of first instance was committed in the state of mental disorder under the influence of alcohol, and therefore, it is groundless.

2. As to the grounds of appeal by a state appointed defense counsel:

(1) The judgment of the court of first instance maintained by the court below is considered to be a crime of violation of Article 2 (2) of the Punishment of Violences, etc. Act, and it is clear in light of the reasoning of the judgment that there was no crime of habitual assault as to the violation of Article 2 (1) of the same Act, such as the theory of lawsuit. The provisions of Article 2 (2) of the same Act shall also apply in cases where one of the crimes listed in Article 2 (1) of the same Act is committed at night or where two or more persons are jointly committed at night (see Supreme Court Decision 77Do528, Apr. 12, 197). The so-called, without the explanation of the reason that the defendant's assault was habitually committed, without the intention that the defendant's assault was habitually committed, is punished as a crime of violation of Article 2 (1) of the same Act and Article 260 (1) of the Criminal Act, and it is merely a misunderstanding of the judgment, and it does not constitute an attack.

(2) The judgment of the court of first instance maintained by the court below stated that the date and time of the crime is about October 20, 1984, and that the crime was committed at night. Thus, without explaining whether the crime was committed at night or at night, the defendant's so-called was committed as the crime of destruction of violation of Article 2 (2) of the above Act, without explaining whether the crime was committed at night. Thus, the theory that the crime was committed after sunrise is merely a mere assertion of misunderstanding of facts that the crime was committed at night, and therefore, the theory that the crime was committed after sunrise cannot be deemed legitimate grounds of appeal in this case.

3. Therefore, the appeal shall be dismissed, and part of the detention days prior to the judgment shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju