In the case falling under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether the provisions of the Criminal Act concerning the precedent of relatives apply.

In a case where Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is applied to punishment for habitual larceny, there is no special provision concerning the relative precedent under the above law, which is a special law, and the general provision of the Criminal Act is applied as it is.

Articles 328 and 344 of the Criminal Act, Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No.775, 661, Counsel for plaintiff-appellant)

Defendant

Defendant

Cheongju District Court of the first instance (86 Gohap53, Counsel for the defendant-appellant)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a short term of one year and six months, and a long term of two years.

One hundred and sixty days of detention days before the sentence of the original judgment shall be included in the above sentence.

The first point of the grounds for appeal by the defendant and his defense counsel is that the defendant committed the thief crimes other than the thief crimes listed in attached Table No. 14 of the crime committed in the judgment of the court below with respect to the thief crimes in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in this case. The court below found the defendant guilty as to the whole of the facts charged. The court below erred in the misapprehension of facts against the rules of evidence, which affected the conclusion

The second point is that the amount of punishment imposed by the court below is too unreasonable because the amount of punishment imposed by the defendant is too unreasonable.

First, in light of the evidence duly examined and adopted as to the grounds for appeal of mistake of facts, there is no reason to believe that the criminal facts of this case by the defendant, which the court below decided, are sufficient to recognize and otherwise erroneous facts.

Examining the following circumstances on the grounds for appeal of unfair sentencing, in detail, the determination of the sentence imposed by the court below is proper and unreasonable because it is not recognized that the determination of the sentence imposed by the defendant is too unreasonable, and thus, the defendant’s dual appeal cannot be accepted.

However, even in cases where Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is applied to cases where the crime of the defendant constitutes habitual larceny, the general provision of the Criminal Act is applied as it is without any special exception to the so-called relative precedent under the above Act, which is a special law. According to each evidence duly examined and adopted by the court below, the victim of larceny as stated in paragraph (14) of the attached Table among the crime committed at the time of original adjudication is recognized as the mother of the defendant. Meanwhile, according to Article 328 of the Criminal Act which is applicable mutatis mutandis by Article 344 of the Criminal Act, if there is such a relationship between the victim and the larceny (including habitual larceny), the victim's complaint can be discussed. According to the victim's written statement (section 62 of the Investigation Records), it can be known that the above victim is not subject to punishment of the defendant, which does not meet the premise that the victim's complaint is not established in the so-called crime subject to victim's complaint, and thus, the court below's judgment is erroneous in the judgment of this part 27.

Therefore, the judgment of the court below that found the defendant guilty, which is a substantial judgment subject to Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, considering the whole facts of the crime committed by the defendant, including the larceny part against the victim to be sentenced to the judgment dismissing the public prosecution, as a comprehensive crime of larceny, cannot be entirely reversed, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the party

The criminal facts of the defendant acknowledged as a member of the party are as shown in the judgment of the court below except for deletion of paragraph (14) of the attached list of crimes in the original trial. The summary of the evidence is as stated in the judgment of the court below, except for deletion of the victim's statement among the summary of the evidence in the judgment of the court below. Thus, all of them are cited in accordance with

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act are comprehensively applied to the larceny of Article 1 of the so-called judgment of the defendant. Article 355 (1) of the same Act is applicable to the embezzlement of Article 2 of the same Act. Among the prescribed punishments, imprisonment for a limited term and imprisonment for a crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes is chosen, and each of the above crimes is concurrent laws under the former part of Article 37 of the same Act. Since each of the above crimes is the concurrent laws under Article 38 (1) 2 and Article 50 of the same Act, it is more severe punishment under Article 38 (1) 2 and Article 50 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and there are two concurrent crimes with punishment under Article 53 and Article 55 (1) 3 of the same Act. Therefore, the defendant shall be sentenced to imprisonment for a limited term of 16 months prior to the above punishment.

Of the facts charged in the instant case, it is clear that the victim had no intention to institute a suit by making a statement that the victim would not be punished, and therefore, even if the victim's above part of the larceny is not supported by the premise of the indictment, it is clear that the prosecutor filed a public prosecution on the part of the defendant's above larceny, despite the lack of support by the premise of the indictment, it constitutes a crime of larceny in violation of the provisions of Articles 334 and 328 of the Criminal Act, and the remaining part of the Criminal Procedure Act should not be prosecuted on the part of the crime of larceny as to the charge of larceny, as stated in the judgment ex officio after the judgment on the grounds of appeal was rendered.

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

Judges Lee Jae-chul (Presiding Judge)