In case where a final judgment of a different kind of crime has been opened in the middle of habitual offenders, whether the crime for which a judgment has become final and conclusive and the habitual offender committed before such judgment is in concurrent crimes under the latter part of Article 37 of the Criminal Act (negative)

Since the final judgment of a different kind of crime is not divided into two habitual offenders even if the final judgment of a habitual offender is opened, and it has been completed after the final judgment of a different kind of crime, the above crime for which the judgment has become final and conclusive and the above habitual offender committed before it cannot be deemed to be concurrent crimes under the latter part of Article 37 of the Criminal Act.

Article 37 of the Criminal Act

Defendant

Defendant

Msan District Court (84 High Court Decision 164, 84 High Court Decision 19)

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for two years.

One hundred days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.

Two (No. 2) Myeonkn-knives (No. 2) seized shall be confiscated.

The appeal on custody claim part of the judgment below is dismissed.

The summary of the grounds for appeal by the defendant and the respondent (hereinafter referred to as the "defendant") is that the period of punishment and protective custody of the court below against the defendant is too unreasonable.

B. In light of the above legal principles, the crime of habitual larceny and the crime of adultery in violation of Article 37 of the Criminal Act is concurrent crimes under Article 39(1) of the Criminal Act, and Article 39(1) of the same Act provides for a separate punishment with regard to the crimes in violation of Article 1 and the crimes in violation of Article 2 of the same Act, and Article 39(1) of the same Act provides for a separate punishment for the crimes in violation of Article 39(1) of the same Act. However, even if the final judgment of a different kind of crime is established in the middle of habitual crimes, it shall not be divided into two habitual crimes, and since the crime in violation of Article 37(1) of the same Act and the crime in violation of Article 37 of the same Act has become final and conclusive after the final judgment of a different kind of crime is terminated, the above crime in violation of the legal principles as to the crime in violation of the latter part of Article 37 of the Criminal Act and the crime in violation of Article 37 of the same Act shall not be divided into two concurrent crimes.

Therefore, since the appeal against the part of the judgment below regarding custody claim is without merit, it is dismissed under Article 42 of the Social Protection Act and Article 364(4) of the Criminal Procedure Act, and since the part concerning the accused case is with merit, the party member who does not intend to examine the grounds for appeal of unfair sentencing is reversed under Article 364(2) and (6) of the Criminal Procedure Act, and it is decided as follows through the oral argument.

The summary of the facts charged and the evidence admitted by a member is the same as the statement of each corresponding column of the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

Along with the case of the defendant, each of the so-called "the Act on the Aggravated Punishment, etc. of Specific Crimes" includes the following: Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 331 (2) of the Criminal Act; Article 331 (2) of the Criminal Act applies to the defendant; Article 35 of the Criminal Act imposes heavy penalty on the defendant; Article 42 of the Criminal Act provides that the defendant has a criminal record of a crime of habitual special larceny; Article 35 of the Criminal Act provides that a repeated crime shall be aggravated within the scope of the proviso of Article 42 of the same Act; and the defendant has a reason to take into account the circumstances such as the confession of all the crimes of this case and his depth of the mistake; Article 53 and Article 55 (1) 3 of the same Act provides that the defendant shall be punished by imprisonment with prison labor for up to two years; Article 57 of the same Act includes 110 days of the number of detention days prior to the declaration of the judgment; and Article 2 k(2) shall not belong to the defendant under Article 48 (1).

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

Judges Park Jong-chul(Presiding Judge)