Whether the crime of habitual robbery and the crime of injury by robbery are crimes of conceptual concurrence (negative)

Examining Articles 333, 334, 337, and 341 of the Criminal Act, and Articles 5-4 (3) and 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the crime of robbery and the crime of bodily injury by robbery are separately stipulated, and the crime of bodily injury by robbery cannot be comprehensively absorption under Article 341 of the Criminal Act (Article 341 of the Criminal Act). Thus, the crime of robbery and the crime of bodily injury by robbery are not relation by habitual concurrence.

Articles 40, 333, 34, 337, and 341 of the Criminal Act; Articles 5-4 (3) and 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes;

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellee)

Defendant 1 and two others

Prosecutor (Defendant 1, 2) and the Defendant (Defendant 3)

Attorney Lee Jong-chul

Daegu High Court Decision 90No233 delivered on May 23, 1990

The part of the judgment of the court below against the defendant 1 and 2 shall be reversed.

The above reversed part case shall be remanded to the Daegu High Court.

Defendant 3’s appeal is dismissed.

The forty days of detention days before the final appeal shall be included in the principal sentence of defendant 3.

1. Judgment on the Prosecutor’s Appeal

According to the reasoning of the judgment below, the court below found Defendant 1 and 2 guilty of all the charges and held that Articles 1 and 2, 5-A, special robbery and attempted special robbery under Article 5-4(3), 334(2), and 333 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Articles 5-4(2), and 333 of the Criminal Act are applicable under Article 5-A, and Article 37 and Article 30 of the Criminal Act are applicable under Article 5-A, while Article 40 and Article 50 of the Act on the Aggravated Punishment, etc. of Specific Crimes and the crime of robbery are applicable under Article 50 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 50 of the same Act on the Aggravated Punishment, etc. of Specific Crimes and Article 5-4(3) of the same Act on the Aggravated Punishment, etc. of Specific Crimes are applicable under Articles 1 and 50 of the same Act on the Aggravated Punishment, etc. of Specific Crimes.

Therefore, the judgment of the court below that the crime of habitual robbery and the crime of injury by robbery constitute several crimes is erroneous in the misunderstanding of legal principles as to the number of crimes, which affected the conclusion of the judgment. The appeal by the prosecutor pointed this out is justified.

2. Judgment on Defendant 3’s appeal

In this case, the argument that the amount of punishment is inappropriate cannot be a legitimate ground for appeal.

3. Therefore, the part of the judgment of the court below against Defendant 1 and 2 shall be reversed, and that part of the case shall be remanded to the Daegu High Court. Defendant 3's appeal shall be groundless, and the part of the detention days before and after the appeal shall be included in the original sentence (Article 24 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings). It is so decided as per Disposition by the assent

Justices Kim Yong-sung (Presiding Justice)