The same or similarity of crimes under the Social Protection Act;

In the case of larceny, the element of the crime of embezzlement is "the embezzlement of the property that has not been occupied" as the element of the "violation of another's possession". In light of the fact that the crime is not different from the nature of the crime in terms of the form of the act and the risk to society, the means, methods and the type of the crime cannot be considered as the same.

Article 6 (2) of the Social Protection Act

Supreme Court Decision 81Do2319 Decided October 13, 1981 (Court Official Gazette 669No 14458 Decided November 24, 1981), 81Do2393, 81Do19 Decided December 22, 1981; 81Do252, 81Do30 Decided December 22, 1981 (Court Official Gazette 675No 235 pages)

Defendant

Prosecutor and Defendant

Seoul Criminal District Court (Law No. 81, 402, 81 Reductions and 109)

The appeal by the defendant and the prosecutor shall be dismissed.

The gist of the grounds for appeal by the defendant is that the defendant has committed a crime of prosecution, but the court below found the defendant guilty. The judgment of the court below is erroneous in misunderstanding of facts that could affect the judgment, and the summary of the grounds for appeal by a public defender is improper because the court below's decision on the defendant's punishment is too unreasonable, and the prosecutor's first point of the grounds for appeal is that the crime of larceny and the crime of embezzlement by possession belongs to the same or similar crime as provided in Article 5 (2) 1 of the Social Protection Act. The court below dismissed the defendant's request for protective custody because it cannot be viewed as a crime of the same or similar kind and thus, the judgment of the court below is a violation of law which could affect the judgment, and the second point is unjust because the court below's decision on the defendant's punishment is too excessive.

Therefore, in light of the records, the first examination of the defendant's assertion of mistake of facts, and the comprehensive examination of various evidences duly adopted by the court below in light of the records, it is possible to fully recognize the criminal facts of the defendant's principal case. Therefore, the grounds for appeal concerning mistake of facts cannot be accepted.

Next, the first ground for appeal by the prosecutor is examined as follows. However, the crime of larceny and misappropriation belongs to the category of property crimes like the Criminal Act, but it is clear that the name of the crime is not the same, and it is not the crime stipulated in the same chapter of the Criminal Act, and in the case of larceny, "the infringement of another's possession", which means "the theft of another's property," is the element of the crime, is the crime of embezzlement of stolen property. In light of the fact that "the embezzlement of property that has not been occupied is the element of the crime," the crime is different from the nature of the crime, and it is not the means and method of the crime, and the type of the crime is not the same. However, in the case of larceny at retail, it is not easy to witness such crime, and it is not possible to readily conclude that the criminal defendant's possession of property can not be punished as evidence of the same kind as the crime of larceny because there is no tendency to do so in all cases.

Therefore, the court below, based on legitimate evidence, completed the sentence on October 9, 1977 after the defendant was sentenced to a punishment for habitual larceny for a short term of one year and six months at the Jeonju District Court on May 18, 197, and completed the sentence on October 3, 1978. The court below completed the execution of the sentence on March 5, 1979. After completion of the sentence, the defendant was sentenced to a punishment for larceny for a short term of ten months and one year and two months at the Seoul District Court on June 3, 1979. On October 30, 1979, the Seoul District Criminal Court sentenced two years of imprisonment for the crime of embezzlement and completed the execution of the sentence on April 1, 1981. (The prosecutor stated that the defendant was punished for embezzlement as the crime of embezzlement in the above request for custody from the prosecutor on April 1, 1981.) Since it is somewhat unreasonable to dismiss the remainder of the crime of larceny as provided in Article 15 of the Social Protection Act.

Finally, examining the grounds for appeal on each of the above unfair sentencing grounds in detail, in light of the circumstances as to the motive, means, result, Defendant’s age, character and conduct, environment, criminal record relationship, circumstances after the crime, etc., it is clear that the sentence imposed by the court below against the Defendant is inappropriate, too heavy, or unreasonable, even if considering the circumstances asserted by the Defendant or prosecutor, it is not considered that the sentence imposed by the court below against the Defendant is too heavy, or unreasonable. Accordingly, each of the grounds for appeal by the Defendant and the prosecutor cannot be accepted.

Therefore, the appeal filed by the defendant and the prosecutor shall be dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

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

Judge final (Presiding Judge) Kim Jong-dae et al.