Whether fraud and larceny are the same or similar crimes (negative)

The crime of fraud and theft can not be considered as a similar crime under Article 6 (2) 6 of the Social Protection Act.

Article 6 (2) 6 of the Social Protection Act

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Kim Yong-nam

Seoul High Court Decision 83No123, 83No33 decided May 10, 1983

The appeal against the accused case shall be dismissed.

40 days, out of the number of days pending trial after appeal, shall be included in the principal sentence.

The part of the judgment below regarding custody case is reversed, and that part of the case is remanded to Seoul High Court.

The grounds of appeal by the defendant and the respondent for defense (hereinafter referred to as the "defendant") and the state appointed defense counsel are also examined.

1. Regarding prosecuted cases,

According to the evidence cited in the judgment of the court below and the judgment of the court of first instance maintained by the court below, there is no circumstance to suspect that the confession of the defendant among the suspect interrogation protocol against the defendant prepared by the public prosecutor, which is recognized to be authentic in its establishment, is not a voluntary statement as an adviser, etc. even after examining the records, and therefore there is no error of law by misunderstanding the facts contrary to the rules of evidence, such as the theory of lawsuit, which

2. As to protective custody claim:

According to the reasoning of the judgment of the court of first instance maintained by the court below, the defendant was sentenced to imprisonment with prison labor for larceny in the Daejeon District Court of May 25, 1973 and one year of imprisonment with prison labor for the same crime in the Cheongju District Court of August 23, 1974; one year of imprisonment with prison labor for the same crime in the Cheongju Branch of the Daejeon District Court of July 16, 1976; one year and six months of imprisonment with prison labor for the same crime in the Daejeon District Court of Jun. 22, 1978; one year of imprisonment with prison labor for the same crime in the Daejeon District Court of Daejeon; one year of night intrusion larceny in the Yan Branch of the Daejeon District Court of Daejeon District of December 4, 1980; and the execution of the sentence is terminated; and habitually, the defendant committed a larceny crime as stated in its reasoning; and he is subject to protective custody by applying Article 5 (1) 1 of the Social Protection Act.

However, Article 2 of the Enforcement Decree of the Social Protection Act provides that the term of punishment stipulated in Article 5 (1) 1 and (2) 1 of the Act shall follow the following. Article 2 of the former part of Article 37 and Article 40 of the Criminal Act conflicts with crimes other than the same or similar crimes in the case of sentence under subparagraph 2, and that if the punishment for a crime other than the same or similar crime is most severe, one half of the sentence shall be imposed, but it shall not exceed the maximum term of the punishment prescribed for the most serious crime among the concurrent or similar crimes. According to the records of the first instance court's criminal record investigation into the defendant for the preparation of the assistant prison term adopted by the first instance court and a certified copy of the judgment compiled in the records, it shall not be deemed that the defendant's imprisonment for 10 months with prison labor sentenced by the Daejeon District Court Branch of May 25, 1973 is a concurrent crime under Article 347 (1) of the Criminal Act and Article 329 of the Criminal Act, and it shall not be deemed that the court below's punishment for the same offense under Article 12 of the same Enforcement Decree of the same Act is a punishment.

3. Therefore, the appeal against the accused case is dismissed, and part of the number of days pending trial after the appeal is included in the principal sentence. The part of the judgment below concerning custody cases is reversed, and this part of the case is remanded to the Seoul High Court which is the original judgment. It is so decided as per Disposition by the assent of all participating judges.

Justices O Sung-sung(Presiding Justice)