Whether Article 3 (3) of the Punishment of Violences, etc. Act is established where a person who has simple habitual nature of violence commits a crime under Article 3 (1) of the same Act (negative)

Article 3 (3) of the Punishment of Violences, etc. Act applies only to cases where a person habitually habitually commits a crime under Article 3 (1) of the aforesaid Act (a person who commits a crime under Article 2 (1) of the aforesaid Act by exercising power of an organization or a group, or showing a power under the pretend of an organization or group, or carrying a deadly weapon or other dangerous articles with him/her, commits a crime under Article 2 (1) of the aforesaid Act), and it does not apply to cases where a person habitually commits a crime under Article 3 (1) of the aforesaid Act (the crimes listed in Article 2 (1) of the aforesaid Act), without such habitual nature, commits a crime under Article 3 (1) of the aforesaid Act.

Article 3 of the Punishment of Violences, etc. Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Kim Hong-chul

Daegu High Court Decision 92No497 delivered on October 7, 1992, and Daegu High Court Decision 92Da23 delivered on October 7, 1992

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

The grounds of appeal by the defendant and the respondent for the custody (hereinafter referred to as the "defendant") are examined.

Article 3 (3) of the Punishment of Violences, etc. Act (hereinafter referred to as the "Act") provides that "any person who habitually commits a crime under paragraph (1) shall be punished by imprisonment with prison labor for life or for not less than seven years." The above provision applies only to a person habitually habitually committing a crime under Article 3 (1) of the Act (a by force of an organization or a group, or by showing a power under the pretending to an organization or a group, or by carrying a deadly weapon or other dangerous articles and carrying a dangerous article and committing a crime under Article 2 (1) of the Act), and it does not apply to a person habitually habitually committing a crime under Article 3 (1) of the Act without such habitual nature.

However, according to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance cited by the court below, the court below explained that Article 3 (3) of the Act shall apply not only to the case where a person who habitually commits a crime under Article 3 (1) of the Act, but also to the case where a person who habitually commits an act of violence commits a crime under Article 3 (1) of the Act, as well as to the case where a person who commits a crime under Article 3 (1) of the Act. The defendant is recognized as a habit of violence in light of the previous records, etc. of the judgment of the court below. Thus, in light of the above legal principles, the court below erred by misapprehending the legal principles as to the punishment of the defendant under Article 3 (3) of the Act, since the court below should have deliberated and judged whether there is habitual nature of the crime under Article 3 (1) of the Act, which affected the conclusion of the judgment by failing to reach the legal principles as to the punishment of the defendant under Article 3 (3) of the Act.

Meanwhile, according to the reasoning of the first instance judgment maintained by the court below, since the protective custody of this case was imposed pursuant to Article 5 subparagraph 1 and attached Table 2 of the Social Protection Act on the premise that the defendant committed a crime under Article 3 (3) of the Act, the whole reversal of this case shall not be exempted.

Therefore, without examining the remaining grounds of appeal by the defendant and the grounds of appeal by state appointed defense counsel, the judgment of the court below is reversed and the case is remanded to the Daegu High Court which is the original judgment. It is so decided as per