(영문) 대전지방법원 2014.01.16 2013노2158 | 리걸엔진

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(영문) 대전지방법원 2014.01.16 2013노2158

특정범죄가중처벌등에관한법률위반(절도)등

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All appeals by the Defendants are dismissed.

Reasons

Summary of Grounds for Appeal

Although the Defendants were not guilty of the larceny due to theft, the judgment of the court below which convicted the Defendants of this part of the facts charged is erroneous in the misapprehension of legal principles as to habituality, which affected the conclusion of the judgment.

The respective sentence of the lower court on the Defendants of unfair sentencing (Defendant A: Imprisonment of two years and two months, and Defendant B: imprisonment of one year and six months) is too unreasonable.

Judgment

Habituality in the assertion of legal principles refers to a habition that repeats the larceny, and the existence of criminal records in the same kind of crime and the frequency, period, motive, means and methods of the crime should be comprehensively considered in determining whether habituality exists.

(2) In light of the above legal principles, the following circumstances are revealed: (a) Defendant A was sentenced to a fine for the same kind of larceny in addition to the past record of having been sentenced to imprisonment on September 23, 201; (b) Defendant B was sentenced to a fine for the same kind of larceny in addition to the past record of violating the Act on the Aggravated Punishment, etc. of Specific Crimes, which was sentenced to imprisonment with prison labor on September 14, 201; and (c) Defendant B was sentenced to a suspended sentence of imprisonment with prison labor for two years and three years for a suspended sentence of imprisonment with prison labor for a special larceny in around 206; and (c) Defendants were extremely similar to the number of criminal offenses committed by the Defendants; and (c) Defendants were committed during the period of repeated criminal records or the period of suspended execution due to each of the above offenses; and (d) each of the above larceny charges cannot be acknowledged in full view of the following circumstances.

The Defendants alleged unfair sentencing is each of the instant crimes.

참조조문

-특정범죄 가중처벌 등에 관한 법률

참조판례

-대법원 2009. 2. 12. 선고 2008도11550 판결

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