Whether habitual nature of robbery can be recognized solely with the previous convictions of larceny over two occasions (negative)

Since the habitual robbery under Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established when a person who has a damp wall of robbery commits robbery, and such a crime is established. Thus, if there are two criminal records of larceny and there are no records of robbery, the criminal records of larceny cannot be considered as data to recognize the habitual robbery of robbery solely with the above criminal records of larceny.

Article 5-4 (3) of the Act on the Aggravated Punishment, etc. and Article 341 of the Criminal Act

Supreme Court Decision 86Do2281 Delivered on January 20, 1987

Defendant

Defendant

Attorney Full-time

Busan High Court Decision 89No426 delivered on September 12, 1989

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal by the defendant and his defense counsel are also examined.

1. As to the Defendant’s ground of appeal No. 1

In light of the records, the first instance court evidence cited by the court below in comparison with the records, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief, robbery), robbery, injury by robbery, and quasi-Robbery crimes in the judgment against the defendant can be fully recognized except for the habitual crimes related to robbery, and there is no violation of the rules of evidence in the process of cooking evidence.

2. As to the second ground for appeal by the defense counsel

Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes was applied to each special robbery committed on October 31, 1987 and November 11 of the same year in collaboration with the non-indicted.

However, the habitual robbery crime stipulated in the above Article is established when a person who has a habit of robbery committed robbery, resulting in the robbery (see, e.g., Supreme Court Decision 86Do2281, Jan. 20, 1987). Since the defendant has two criminal records of larceny, such as the judgment of the court of first instance and criminal records, and there is no evidence to acknowledge the force of robbery on the records, it cannot be viewed as a material to recognize the habitual robbery of robbery solely with such criminal records of larceny in this case. Further, even though the defendant committed the crime of robbery with the non-indicted on November 16, 198, by combining the above special robbery with the non-indicted on Jan. 23, 198, it cannot be viewed as a material to recognize habitual robbery by combining it with the above special robbery, and even if the above special crime was somewhat similar to the motive or frequency of the crime in this case, it is difficult to conclude that the robbery of this case was committed.

Therefore, the court below's decision that maintained the first instance court's judgment can be admitted as a habitor in light of the fact that the defendant repeatedly committed the crime within the short time after release, because it violated the rules of evidence or erred in the misapprehension of the legal principles on habitual offenders, which affected the conclusion of the judgment. Therefore, it is reasonable to point this out.

Therefore, among the judgment below, the part of the judgment of the court below that maintained the conviction of the first instance court on the charges of habitual robbery under Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes should be reversed. Since the judgment of the court of first instance maintained by the court below was based on the aforementioned charges of habitual robbery and other charges as concurrent crimes under the former part of Article 37 of the Criminal Act, the whole judgment of the court below is reversed and the case is remanded to the court below.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won