If a criminal record of a crime other than the same or similar crime has been committed, the method of imprisonment plus;

According to the provision of subparagraph 2 of Article 2 of the Enforcement Decree of the Social Protection Act, in a case where a sentence is imposed under the former part of Article 37 and Article 40 of the Criminal Act, if the punishment prescribed for a crime other than the same or similar crime is most severe, the sentence shall be imposed in the term of punishment, but it shall not exceed the maximum term of the punishment prescribed for the most serious crime among the concurrent or similar crimes. Thus, in a case where the defendant was sentenced to ten months by imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act, special larceny, or nighttime intrusion larceny at night at the Busan District Court on March 14, 1973, the statutory punishment for a violation of the Punishment of Violences, etc. Act, which is not the same or similar crime, is more than the statutory punishment for special larceny, night intrusion larceny, and larceny at night, it shall be sentenced to two-minutes

Article 2 subparagraph 2 of the Enforcement Decree of the Social Protection Act

Defendant

Busan District Court (81 High Court Decision 399, 81 High Court Decision 68)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

85 days of detention prior to the pronouncement of the judgment below shall be included in the above sentence.

One ticket (Evidence No. 1), the Bank of Korea 1,00 won (Evidence No. 2), and 15 copies (Evidence No. 3) of bus passes shall be returned to the victim non-indicted 1.

The claim for protective custody is dismissed.

The summary of the grounds for appeal by the defendant, the defendant, and the defense counsel is that the sentencing of the court below against the defendant is too unreasonable, and it is unfair that the court below is faced with seven years of protective custody.

First of all, the defendant's grounds for appeal on the grounds of unfair sentencing are limited to the amount of damage on this case's case's case's case's case's case's case's case's case's case's case's case's case's error is divided in depth, and all circumstances shown in the record and arguments are considered to be unfair.

As to the grounds of appeal on the part of the Defendant’s custody claim, the lower court: (a) determined that the Defendant was sentenced to imprisonment without prison labor or more for the same or a similar crime, and sentenced to seven years under protective custody by applying Article 5(2)1 of the Social Protection Act; (b) determined that the Defendant committed a crime of life imprisonment or imprisonment for at least three years after the execution of the final sentence was completed; and (c) held that the risk of recidivism exists; and (d) sentenced the Defendant to seven years under protective custody

However, according to the criminal records of the defendant in the third division of the Public Security Headquarters and a certified copy of the judgment attached to the trial records, the defendant (1) on March 14, 1978; 10 months of imprisonment with prison labor for special larceny in violation of the Punishment of Violences, etc. Act; 2. 8 months of imprisonment with prison labor for larceny in the same court on June 5, 1978; 3) on August 14, 1979, with prison labor for habitual larceny; 1.6 months of imprisonment with prison labor for the above (1) and completed execution; 1.3 times of violation of the Punishment of Violences, etc. Act with non-indicted 2 and 3; 1.3 times of imprisonment with prison labor for the same or similar crime; and 1.4 times of imprisonment with prison labor for the same kind of crime as the victim's name and non-indicted 2 and 3; and 1.3 times of imprisonment with prison labor for the same or similar crime under Article 2-2 of the Enforcement Decree of the Social Protection Act.

Therefore, since it is apparent that the Defendant is a person who does not meet the requirements for protective custody under Article 5(2)1 of the Social Protection Act, it is illegal for the lower court to sentence the Defendant seven years to protective custody by applying the above Social Protection Act, and thus, the lower court cannot reverse the judgment.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided after pleading.

On March 14, 1973, the defendant was sentenced to imprisonment with prison labor for larceny in the same court on June 5, 1978 and one year and six months on August 14, 1979 with prison labor for habitual special larceny and completed the execution on October 17, 1980. Around March 19, 1981: around 00, the defendant used a mixed gap following Nonindicted 1 (the age of 19) followed by Nonindicted 1 (the age of 19) following the following behind the new department store located in the Seo-gu Busan District Court, Busan District Court, which used the handbag that was filled by the bag and the handbag that was filled by the bag, and the defendant was sentenced to imprisonment with prison labor in the same court on August 14, 1979 and completed the execution on October 17, 1980.

The remainder of the facts in the facts of the ruling excluding criminal records and habituality :

1. Statement consistent with the facts stated in the court of the defendant;

1. Statement that corresponds to the facts indicated in the protocol of examination of the accused prepared by the public prosecutor;

1. Statement that corresponds to the facts in the judgment among the statement statement made by Nonindicted 1 in the course of handling the affairs of judicial police officers;

1. In full view of the existing existence, etc. of one (No. 1), 1,000 won (No. 2) and 15 (No. 3) of each of the seized pocket book (No. 1,000 won); and

Of the judgment section:

1. Statement corresponding thereto in the court of the defendant;

1. A notice of criminal records against a defendant prepared by the third head of the Public Security Headquarters may be recognized by the entries consistent with the ruling; and

In light of the habitualness of the judgment, as shown in the judgment of the defendant, the defendant has been convicted of several times due to night-time theft, etc., and the last execution of the punishment has been completed and six months has passed after the last execution of the punishment, and the crime of larceny of the same kind (retailing) can be recognized, so the facts of the judgment are sufficient to prove it.

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act are applicable to the judgment of the defendant. Since the defendant has the first head of the judgment, the defendant is subject to the imposition of repeated crime within the limit of the proviso of Article 42 of the Criminal Act, Article 35 of the Criminal Act, and the defendant is subject to the imposition of repeated crime within the limit of the proviso of Article 42 of the same Act, and there are circumstances to be taken into consideration after the crime. Thus, the defendant shall be subject to imprisonment with prison labor within the scope of the mitigated term under Articles 53 and 55 (1) 3 of the same Act, within the scope of the mitigated term under Article 55 (1) 3 of the same Act, he shall be subject to imprisonment with prison labor for 85 days from the number of detention days prior to the sentence of the judgment of the court below under Article 57 of the same Act, and one ticket, etc. (Evidence 1 to 3) shall be returned to the victim under Article 333 (1 of the Criminal Procedure Act.

A prosecutor claims the Defendant to protective custody by applying Article 5(2)1 of the Social Protection Act. However, as stated in the reasons for reversal, the Defendant does not meet the requirements of the Social Protection Act. Thus, the Defendant’s claim for protective custody is dismissed for reasons without merit.

It is so decided as per Disposition for the above reasons.

Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)