Whether only three previous crimes have been committed more than six years from the date of the last crime, and whether the crime can be recognized as a habitual offender once more than three years from the date of the release.

Habitualness refers to the behavior that repeats the crime. As such, even if habituality is recognized, if the crime of this case was committed more than three times and more than six years have passed since the date of the last crime, and if the crime of this case was committed once after three years have passed since the date of the last crime, it is not enough to recognize that the crime of this case was habitually committed, because the crime of this case was committed one time after the date of the last crime, and the crime of this case was committed one time after the expiration of a long time from the last day of the crime, it is not sufficient to recognize that the crime of this case was habitually committed. Even though the crime of this case was committed one time after the last day of the crime of this case, it should be recognized as a habitual crime along with the above criminal facts, and in particular, it should be justified to recognize that it was a temporary crime of this crime of this case.

Articles 332 and 329 of the Criminal Act

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Shin Shin-chul

Seoul High Court Decision 87No486,87No50 decided May 28, 1987

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

The grounds of appeal by the defendant and the respondent for defense (hereinafter referred to as the "defendant") and his defense counsel shall be examined.

Examining the evidence cited by the judgment of the court below and the judgment of the court of first instance in comparison with the records, the court below's decision that found the thief crime in the judgment of the defendant as a crime is justified and there is no error in the rules of evidence or in the incomplete deliberation, such as erroneous selection of evidence, etc.

However, the court below accepted the judgment of the court of first instance that recognized the defendant as habitual offender and stated that the defendant had been punished several times due to the theft and special larceny, etc., and that the crime of this case is the same as the previous one, and that the crime of this case can be recognized habitually by taking into account the motive, means, results, etc. of the crime of this case.

According to the court below's decision, the defendant was sentenced to 8 months of imprisonment with prison labor for larceny, 7 months of imprisonment with prison labor for special larceny on December 14, 1973, and 4 years of imprisonment with prison labor for special larceny on June 17, 1980, and was released on December 26, 1983 and was released on August 30, 1986. The records show that the defendant committed the crime of this case on August 30, 1986, which was last 3 years, all of which were committed before the judgment of the court of the court of the court below.

However, habitual crimes refer to the behavior that repeats the crime. Thus, even if habitual crimes are recognized as an important basis for habitual crimes, the recovery and attitude of the crime, and the previous criminal records, etc. are committed three times or more in this case, such as this case, but the last sentence was sentenced to imprisonment with prison labor on June 17, 1980. Thus, if the crime of this case is committed one time after the six years have elapsed since the date of the last crime, and the three years have passed since the date of the release, it is not sufficient to recognize that the crime of this case was habitual crimes of this case as a result of the same kind of crime. Despite the fact that the crime of this case was committed one time after the expiration of a long time from the last day of the crime, it should be recognized as a habitual crime of this case in addition to the above criminal records, in order to recognize it as habitual crimes.

Rather, according to the records, the defendant, who is currently aged 63 years old and was released from the military court due to his previous convictions as stated in its reasoning, was living for the past, and his son and son and son were living for a relatively stable life. On the day of this case, the day of this case, her son and her her son and her son and her her son and her son were living for a relatively stable life (the defendant stated that she was under the influence of alcohol at the time of denying the crime of this case). If the defendant's her son and her son were based on the same change, it is difficult to regard the crime of this case as the thief.

Nevertheless, the court below erred in recognizing habituality without any evidence or failing to exhaust all necessary deliberations on the habitual recognition of the habitual nature, which affected the judgment below (criminal punishment and protective disposition).

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Man-hee (Presiding Justice)