[1] Criteria for determining whether a theft has habitual nature

[2] Whether an offender can deny habituality merely because he/she was in a state of mental disorder such as mental disorder at the time of the crime (negative)

[1] Habituality in larceny refers to a habition that repeatedly commits the larceny. The existence of the same criminal record and the frequency, period, motive, means and method of the crime in the same case must be determined by taking into account the existence of the criminal record and the frequency, period, and method of the crime in the same case.

[2] Habituality of a person who committed a crime is not uniformly denied on the ground that the perpetrator was in a state of mental disability such as mental disorder at the time of the crime. The circumstance of mental disorder, such as mental disorder, is only one of the various circumstances supporting the determination of whether or not to deny habitualness. Therefore, it cannot be readily concluded that the criminal act was not habitually realized solely on the ground that the offender was in a state of mental disorder such as mental disorder at the time of the crime, such as mental disorder, and the habituality can be recognized by taking into account other circumstances, and if there is a case where it is not possible for the perpetrator to take the part of the mental disability such as mental disorder to deny habitualness, it can be evidence to deny the habituality of the offender.

[1] Article 329 of the Criminal Act, Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 329 of the Criminal Act, Article 5-4 of the Act on the Aggravated

[1] Supreme Court Decision 2004Do6176 Decided May 11, 2006 (Gong2006Sang, 1086), Supreme Court Decision 2007Do2956 Decided June 28, 2007 / [2] Supreme Court Decision 2007Do3820, 2007Do88 Decided August 23, 2007

Defendant

Prosecutor

Attorney Jin Jin-cag

Incheon District Court Decision 2008No2839 Decided November 27, 2008

The appeal is dismissed.

We examine the grounds of appeal.

Habitualness in larceny refers to a habition that repeatedly commits larceny. Determination of habituality should be made by comprehensively taking into account the existence of the same criminal record and the frequency, period, motive, means, and method of the crime (see, e.g., Supreme Court Decision 2004Do6176, May 11, 2006). Meanwhile, it cannot be said that the habituality of the offender should not be uniformly denied on the ground that the offender was in a mental disorder, such as mental disorder, at the time of the crime. The circumstances such as mental disorder, etc. are one of the various circumstances, which are materials to determine whether the habituality should be denied. Thus, even if the offender was in a mental disability such as mental disorder at the time of the crime, it cannot be readily concluded that the crime is not habitually occurring, and if it cannot be considered as materials to deny the habituality of mental disorder, it may not be said that there is any other circumstance (see, e.g., Supreme Court Decision 2007Do827, Aug. 27, 2007).

The lower court determined that: (a) the Defendant was convicted of eight instances of special larceny, larceny, etc. over several occasions from November 19, 1974 to July 23, 2008; (b) however, the previous criminal records up to 1998 have a considerable interval from the date and time of the instant crime; and (c) there was no sentence of imprisonment since 2003, which was the crime following that time; (d) the Defendant was faced with an accident due to cerebrovascular surgery on July 2002; and (e) the injury of class 4, whose function such as recognition, accident, adaptation, etc. was deteriorated due to liver, after liver stress, might have an impact on the crime after 203; (e) the frequency of the instant crime was only one time, and the content of the same criminal offenses committed by the Defendant after 2003, and it was difficult to readily conclude that the Defendant was subject to the theft of the Defendant or the Defendant’s open vehicle during the process of the larceny of 208 doors.

Examining the reasoning of the lower judgment in light of the record in light of the foregoing legal doctrine, we affirm the fact-finding and judgment of the lower court as justifiable.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the violation of the rules of evidence or the habitualness in larceny.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)