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대구지방법원 2018.10.26 2018노2874
야간건조물침입절도등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Reasons

1. Summary of grounds for appeal;

A. The sentence (6 months of imprisonment) sentenced by the first instance court (the judgment of the court of first instance) is too unreasonable.

B. A prosecutor (the judgment of the court below No. 2) or misunderstanding of the legal principles has the records of being punished several times for larceny, and it is reasonable to view that the method of each of the crimes is identical, and that the defendant is habitually punished when considering the frequency, time interval, etc. of each of the crimes of this case. Thus, the court below found the defendant not guilty of habitual larceny on the ground that there is no habit of larceny. The court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment

2) The sentence sentenced to the second sentence of the punishment unfair (six months of imprisonment, two years of suspended sentence, observation of protection, and community service order 120 hours) is too uneased and unfair.

2. Determination

A. Prior to the judgment on each of the grounds for appeal by the defendant and the prosecutor, the defendant and the prosecutor filed an appeal against the judgment of the court below, and the pleadings were combined in the trial. Since each of the offenses the judgment of the court below was concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment should be imposed pursuant to Article 38(1) of the Criminal Act, since the judgment of the court below that rendered a separate sentence for each of the above offenses cannot be maintained in this respect.

B. We examine the judgment of the court below on the prosecutor's assertion of mistake of facts or misapprehension of legal principles, even if there are grounds for reversal of authority above, since the prosecutor's assertion of mistake of facts or misunderstanding of legal principles is still subject

Habitualness in larceny refers to a habit that repeatedly commits larceny. Determination of habituality ought to be made by comprehensively taking into account the existence of criminal records in the same kind of crime and the frequency, period, motive, means, and method of the crime in the same case (see, e.g., Supreme Court Decision 2008Do11550, Feb. 12, 2009). The evidence of this case based on the foregoing legal doctrine.

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