The defendant's appeal is dismissed.

Summary of Grounds for Appeal

Despite the absence of assault, etc. against the Defendant at the time of committing the instant crime of mistake of facts, the lower court erred by misapprehending the legal doctrine on habituality, thereby finding the Defendant guilty of the instant charges.

The court below's sentence of unfair sentencing (eight months of imprisonment) is too unreasonable.

Judgment

In regard to the assertion of misunderstanding of facts, habitual crime refers to any mistake of a criminal, and the tendency of a crime is not the nature that forms the essence of the act, and it refers to the character that forms the character of the offender. As such, the existence of habituality as prescribed by Article 2(1) of the Punishment of Violences, etc. Act shall be determined by comprehensively taking into account various circumstances, such as the defendant's age, character, occupation, environment, past fact, motive, means, method and place of the crime, time interval with the previous crime and similarity with the contents of the crime. In particular, the existence of the same kind of crime, frequency of the crime, frequency and frequency thereof, the specialization of the method and method of the crime, the motive and circumstance of the crime, and the repetition of the crime, etc. may be a major factor for the determination of habituality.

(See Supreme Court Decision 2004Do6176 Decided May 11, 2006, etc.). The following circumstances acknowledged by the Health Team, evidence duly adopted and investigated by the original court, namely, the Defendant has been subject to 20 times of suspension of execution, including one time of suspension of execution, three times of punishment, etc., and the Defendant committed the instant crime within the repeated crime period after the completion of punishment due to the crime of interference with business in the lower judgment. The Defendant committed the instant crime within the repeated crime period after the crime of interference with business was completed, and the Defendant’s aforementioned crime of violence was caused by the reasons that all of the aforementioned criminal records were either dead or uncomfortable without any particular reason or motive, and it does not seem that the instant crime was committed under any contingent motive or inevitable circumstances, and the Defendant had tried to drink alcohol to the victim at the time of drinking.