Defendant

Defendant and Prosecutor

Lee Jong-sung (Court) and Kim Jong-hwan (Court of Justice)

Attorney Kim Jong-tae (Korean)

Gwangju District Court Decision 2016Gohap178 Decided September 2, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four years.

1. Summary of grounds for appeal;

A. Defendant

① At the time of the instant case, the Defendant had been in a state of mental disability due to the military wall evidence, etc. (non-incompetent with mental disability), and ② The lower court’s imprisonment with labor for a limited period of four years is too vague and unreasonable (unjustifiablely unfair).

(b) Prosecutors;

1) Legal principles

The defendant's act of intrusion upon residence is not absorption into habitual larceny as provided for in Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "Special Crimes Act"), and separate crime of intrusion upon residence is recognized, and it must be in a substantive concurrent relationship with habitual larceny under special circumstances. Nevertheless, the judgment of the court below which acquitted the defendant of this part of the facts charged is erroneous in the misapprehension

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Determination

A. Judgment on the misapprehension of the legal principle by the prosecutor

1) The judgment of the court below

The lower court found the Defendant guilty of this part of the charges on this part on the ground that the crime provided for in Article 5-4(6) of the Aggravated Punishment, etc. of Specific Crimes Act is an aggravated element of the crime as provided for in Article 5-4(1) of the former Act (amended by Act No. 13717, Jan. 6, 2016; hereinafter “former Aggravated Punishment Act”). As such, the relationship between habitual larceny and intrusion upon residence as provided for in Article 5-4(6) of the Aggravated Punishment Act should be equally applied to the crime of habitual larceny as provided for in Article 5-4(1) of the former Aggravated Punishment Act, on the premise that the crime of intrusion upon residence of the Defendant is absorption into habitual larceny as provided for in Article 5-4(6) of the Aggravated Punishment, etc. of Specific Crimes Act and does not constitute a crime of habitual larceny as provided for in Article 5-4(6) of the Aggravated Punishment, etc. of Specific Crimes Act.

2) Determination of the immediate deliberation

Article 5-4 (5) of the former Aggravated Punishment Act requires criminal records and repeated crimes, in addition to the requirements of habituality, while Article 5-4 (1) of the former Aggravated Punishment Act requires habitualness, and the requirements are different. In addition, intrusion upon residence is not a constituent element of larceny, in general, except night residence intrusion and larceny provided for in Article 330 of the Criminal Act and special larceny provided for in Article 331 (1) of the same Act. In addition, in a case where a thief suffers from his/her residence as a means of larceny, his/her intrusion upon residence does not constitute a separate crime of larceny and constitutes a substantive concurrent relationship with larceny (see, e.g., Supreme Court Decisions 2008Do7820, Nov. 27, 2008; 2015Do8169, Oct. 15, 2015).

In light of the above legal principles, the court below held that the defendant who committed the larceny by intrusion upon residence during the daytime did not constitute the crime of intrusion upon residence separately by absorbing the crime of intrusion under Article 5-4 (6) of the Aggravated Punishment Act. The court below erred by misapprehending the legal principles.

B. Judgment on the defendant's mental disability claim

According to the evidence duly adopted and examined by the lower court and the lower court, in light of the background and method of the instant crime, the circumstances before and after the instant crime, and the details of the Defendant’s statement, etc., it does not seem that the Defendant did not have had the ability to discern things or make decisions due to the military register evidence, etc. Therefore, this part of the Defendant’s assertion is without merit.

3. Conclusion

Since the prosecutor's argument of misapprehension of the legal principles is well-grounded, the judgment of the court below is reversed without examining the defendant and the prosecutor's argument of unfair sentencing under Article 364 (6) of the Criminal Procedure Act, and the following decision is

【Criminal Power】

On September 30, 2005, the Defendant sentenced imprisonment for one year and six months to imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. at the Gwangju District Court on March 27, 2008, and for the same crime at the same court on March 7, 2008, three years of imprisonment for the same crime at the same court on January 7, 2010, and three years of imprisonment for the same crime at the same court on February 13, 2013, and completed the execution of the final sentence on December 20, 2015.

【Criminal Facts】

1. Violation of the Aggravated Punishment Act;

The Defendant got back to the alley, and intruded into the alleys of abandoned houses to steals money and valuables, and boarded the alley path (vehicle registration number omitted) with the Defendant getting on and off (vehicle registration number omitted).

At around 10:42 on May 12, 2016, the Defendant discovered that the main gate was opened in the house of the 1st floor of Gwangju Mine-gu (location omitted), and stolen the Defendant’s total amount of approximately KRW 1,875,000 on 12 occasions in total, including one half of the net amount for male for women owned by Nonindicted Party 1, one half of the net amount for women’s use (5 0.5 0 0 0 0 0 0.5 0 0 0 0 0 0,000 in total, as shown in the attached list of crimes, including one precious metal 1,875,000 in total, as shown in the attached list of crimes.

2. Intrusion upon residence;

On May 12, 2016, at around 10:42, the Defendant discovered that the main gate was in the first floor of the housing unit in Gwangju Mine-gu, and intruded into the residence managed by the victims 12 times in total, such as the list of crimes in attached Form 1.

The summary of the evidence recognized by this Court is as stated in the corresponding column of the judgment below. It is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 5-4(6) of the Aggravated Punishment Act, Article 329 of the Criminal Act, Article 342 of the Criminal Act ( comprehensively including attempted larceny and habitual larceny), Article 319(1) of each Criminal Act (Influence of Residence and Selection of Imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act [Inasmuch as there is a criminal record of a violation of special family law, the execution of which was completed on December 20, 2015]

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Concurrent Crimes within the limit of the proviso of Article 42 of the Criminal Act]

The crime of this case is a case where the defendant intrudes on another person's residence in Gwangju and inn part, and commits larceny and intrusion on another person's residence over 12 times, and the result of the crime is not less severe and is also very poor. The defendant was punished several times, including imprisonment with prison labor due to the same kind of larceny crime, and committed the crime of this case again within the repeated crime period after the execution of punishment for the same kind of crime has been completed.

However, the defendant led to the confession of the crime of this case and divided his mistake, the amount of damage to the thief crime was not significant, the defendant agreed with the victim non-indicted 2 and non-indicted 3, and the above victims want to have the prior wife against the defendant, and the defendant's wife again wanted to have the prior wife against the defendant, etc. In addition, the defendant's age, character and behavior, environment, result of the crime, the result of the crime, and the circumstances after the crime, etc. shall be determined as per the order in consideration of various sentencing factors such as punishment.

[Attachment]

Judges Noh Jeong-ju (Presiding Judge)