The case holding that it is insufficient to recognize habituality of the crime of acquiring stolens

Habitual sexuality may be recognized as a material of repeated circumstances even if there has been no previous convictions. However, the fact that the defendant acquired stolens over three times (out of the past) is insufficient to recognize as habitual material.

Article 363 of the Criminal Act

Defendant 1 and one other

Prosecutor and Defendant

Daegu District Court of the first instance (76 Gohap63, Daegu High Court Decision)

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment for one year.

75 days from the number of days of detention in the original instance prior to the rendering of judgment shall be included in the penalty.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

Defendant 2’s appeal is dismissed.

140 days out of the number of days of confinement before the pronouncement of this judgment shall be included in the original sentence of the above accused.

The gist of Defendant 2’s grounds of appeal is that Defendant 2’s punishment is to be imposed, taking into account the motive for committing the instant crime, compensating for a considerable amount of money after committing the instant crime, and the family relationship of the Defendant. In light of all circumstances, such as the motive for and result of the instant crime, Defendant’s motive for committing the instant crime, circumstance after committing the crime, home environment, etc., the sentencing of the lower court is reasonable and unreasonable.

Therefore, the judgment of the court below is justified and the appeal by Defendant 2 is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, since it is recognized that the appeal by the defendant 2 is groundless, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, and 140 days out of the number of days of detention before the pronouncement of the judgment shall be included in the original sentence of the court below in accordance with Article 57 of the Criminal Act. The first summary of the grounds for appeal by the defendant 1 is that the court below, although the defendant did not have knowledge of the fact that the damaged article was a stolen article, the court below erred in the fact-finding as to habituality, and that the defendant acquired stolen article habitually from the above defendant 2 more than three times, and the court below erred in the fact-finding as to habituality and applied law, and the second point of appeal by the defendant and the defense counsel is too unreasonable.

Therefore, in light of the first ground for appeal of the defendant, and the evidence duly examined and adopted by the court below, it is sufficient for the defendant to recognize that the defendant acquired the damaged goods with the knowledge that they are stolen goods at the time and place of each original adjudication, and otherwise, there is no evidence to find that the defendant was unaware of the fact that the damaged goods are stolen goods, as alleged by the defendant, so this part of the appeal by the defendant is groundless.

Next, according to the first ground for appeal by the defense counsel, the court below accepted that the defendant was prosecuted for habitually acquiring stolen property, and it is clear that Article 363 (1) of the Criminal Act on the crime of habitual property acquisition is applied to the defendant, based on the fact that the defendant acquired the tools, etc. stolen by the defendant 2 on May 12, 1976 and on the same month 6.11 and 27 on June 1, 1976, which continued several times within the same kind of act.

However, the crime of habitual acquisition of stolen property does not necessarily require the existence of a criminal record of stolen property, and even if such an act may be recognized as data several times, since it is nothing more than that of a defendant who does not have a criminal record of the acquisition of stolen property or any other criminal record of the crime, it cannot be viewed as a crime of habitual acquisition, even if the crime of habitual acquisition was committed by a person who has a habit of the acquisition of stolen property, and it cannot be viewed as a crime of habitual acquisition. However, the court below found the defendant as a crime of habitual acquisition of stolen property and applied the law by misunderstanding the fact-finding as to habitual acquisition, and in this regard, the appeal by the defendant 1 is justified.

Therefore, pursuant to Article 364(6) of the Criminal Procedure Act, the part of the judgment below against Defendant 1 among the judgment below shall be reversed, and the defendant 1 shall be acquitted for the same reasons as seen earlier. However, since the prosecutor changed the indictment through legitimate procedures and added the charges to simple stolen acquisition crimes, it shall be judged again after pleading.

(Criminal Facts and Summary of Evidence)

Defendant 1’s criminal facts and the summary of evidence recognized as a party member are as shown in each corresponding column of the judgment of the court below, except for the deletion of “Habitually” as stated in the third sentence of the judgment of the court below. Therefore, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

(Application of Acts and subordinate statutes)

On the other hand, the court below's decision falls under Article 362 (1) of the Criminal Act. The defendant's decision-making decision-making is that the prescribed sentence of imprisonment is selected, and the crime is concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the defendant is punished by imprisonment with prison labor within the scope of one year within the most important crime's concurrent crimes under Articles 38 (1) 2 and 50 of the Criminal Act. Article 57 of the Criminal Act includes 75 days out of the number of days of detention in the court below prior to the pronouncement of sentence in accordance with Article 57 of the Criminal Act, and the defendant has a reason to take into account the above circumstances such as the elderly patient's store, etc., for three years under Article 62 of the same Act.

(Judgment on the Main Facts charged)

In the first place, the prosecutor prosecuted the defendant who habitually acquired stolens as stated in the judgment, but it is not recognized that the defendant had a habit of acquiring stolens even by all the materials cited by the prosecutor, and on the ground that the habitual nature of the defendant's acquisition of stolens cannot be recognized for the above reasons, and thus, the prosecutor acquitted the defendant as to the dynamic charges, or found the defendant guilty as to the ancillary charges, such as the above recognition, and therefore, it is not clearly stated in the order.

It is so decided as per Disposition for the above reasons.

Judge Choi Jae-ho (Presiding Judge)