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Main Issues
Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall not apply to the case where Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes is not applicable, since there is no evidence that the defendant committed a crime of attempted special robbery
Summary of Judgment
Article 55-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall not apply to the case where the defendant has a history of larceny or habitual larceny, and there is no evidence that there is only one time and the special robbery committed again has been committed by another, and there is no evidence that the crime of attempted robbery has been committed by the robbery.
[Reference Provisions]
Article 5-4 (3) of the Aggravated Punishment Act
Reference Cases
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Attorneys Park Jae-do et al., Counsel for plaintiff-appellant)
An applicant for concurrent Office of the Defendant
Defendant and Appellant for Custody
upper and high-ranking persons
Prosecutor
Defense Counsel
Attorney Jeon Byung-hoon
Judgment of the lower court
Seoul High Court Decision 90No991,90No63 delivered on June 22, 1990
Text
The appeal is dismissed.
Reasons
We examine the grounds of appeal.
Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established when a person who has a habit of robbery commits a special robbery again on the face of such habition. Thus, if there is only one history of larceny or habitual larceny, and there is no evidence to prove that the crime of this case was committed on the face of robbery, as legitimately decided by the court below, Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes cannot be applied (see Supreme Court Decision 86Do2281, 86Do251, Jan. 20, 1987) and Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes should be applied to the crime of this case as a simple attempted special robbery, and it does not correspond to a crime as prescribed in the attached Table which is stipulated as the requirements for care and custody under Article 5 (3) of the Social Protection Act, and there is no error of law by misunderstanding the legal principles as pointed out.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)