The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and four months.

The request for probation order of this case is dismissed.

1. Summary of grounds for appeal;

A. The part of the defendant's case is too unreasonable that the court below sentenced the defendant and the person requesting the probation order (hereinafter "the defendant") to the defendant and the person requesting the probation order for two years and six months.

B. The lower court ordering probation to the Defendant, in the part of the case of probation order, although the Defendant does not pose a risk of repeating robbery.

2. Determination

A. According to the evidence duly adopted and examined by the court below on July 8, 2008, the part of the defendant's case (ex officio judgment) was examined. ① The defendant was sentenced to a suspended sentence of six months at the Seoul Southern District Court on August 14, 2008 due to the crime of larceny and intrusion upon residence on July 8, 2008, and the judgment became final and conclusive on August 22, 2008 (hereinafter "the first final judgment"). ② The defendant was the crime of larceny and intrusion upon residence from May 13, 2008 to June 30, 208, which was sentenced to a suspended sentence of two years at the Seoul Southern District Court on July 13, 2009 (hereinafter "the second final judgment"), and the fact that the judgment became final and conclusive on July 21, 2009 (hereinafter "the second final judgment"), and the fact that the judgment constituted a concurrent crime under Article 37 of the Criminal Act as at the time the judgment became final and conclusive.

However, the instant case was committed on June 13, 2008, which was before the first and second final judgment became final and conclusive, and is in the relationship of each of the crimes in the first and second final judgment and the latter part of Article 37 of the Criminal Act concurrent crimes. Therefore, the punishment should have been determined by taking into account equity with the case of concurrent judgment pursuant to Article 39(1) of the Criminal Act.

(See Supreme Court Decision 2008Do209 Decided October 23, 2008). Nevertheless, the lower court determined that only the instant crime and the first final and conclusive judgment were concurrent crimes under the latter part of Article 37 of the Criminal Act, and thus, the lower court cannot be maintained in this respect.

B. The following circumstances acknowledged by the record on the part of the claim for probation order, i.e., the Defendant’s mistake.