Whether the appellate court may ex officio apply Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Special Robbery) on the ground that where a person was prosecuted for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (special robbery) but his/her habitualness is not recognized in the first instance trial, and the case is not at issue in the grounds of appeal by the prosecutor (affirmative)

Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Special Robbery) is not applicable to the charges of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Special Robbery) and Article 5-4 (3) of the same Act is not applicable to the charges of robbery in the first instance court, and Article 334 of the Criminal Act is applied to the charges of special robbery, and the prosecutor filed an appeal but did not raise any problem in the grounds of appeal.

Article 5-4 (3) of the Act on the Aggravated Punishment, etc., Article 334 of the Criminal Act, Article 364 (2) of the Criminal Procedure Act

Supreme Court Decision 72Do1634 Delivered on August 29, 1972

Defendant 1 and one other

Defendants

Attorneys Central and Central Law Firm, Attorneys Kim Hong-tae

Seoul High Court Decision 89No3659, 89No2375 decided Feb. 23, 1990 (combined) and Chuncheon District Court Decision 72No181 decided Jun. 29, 1972

The appeal is dismissed.

The 70 days under detention after the appeal shall be included in the calculation of the original sentence.

Defendants and state appointed defense counsel are also examined in their respective grounds for appeal.

In light of the records, we affirm the fact-finding of the court below and the evidence of the court of first instance cited by the court below, and there is no error of law by admitting facts without any evidence or by misunderstanding the rules of evidence.

In addition, the court below did not consider each suspect interrogation protocol as evidence to acknowledge the facts constituting the crime against the defendants in the course of handling judicial police affairs, nor did it be deemed that the suspect interrogation protocol or statement cited by the court below do not contain any voluntariness or credibility, and it cannot be said that the evidence cited by the court below is insufficient to recognize the facts constituting the crime of

In addition, Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Special Robbery) against Defendant 1 is not recognized as habitual robbery in the first instance trial, and Article 5-4 (3) of the same Act is applied to the charges of robbery, and Article 334 of the Criminal Act is applied to the charges of special robbery, and even if the prosecutor filed an appeal but the prosecutor did not raise any question in the grounds for appeal, if habituality is recognized, the appellate court should recognize habitualness ex officio in the appellate trial and apply Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes. Therefore, it cannot be said that the above measures of the court below are

Therefore, all appeals are dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)