Whether habitual special larceny is absorbed into habitual special robbery (negative)

Habituality refers to a habit that repeats the act of the same kind. Since larceny and robbery are not considered the same kind of act, their habituality is different from each other. Therefore, habitual special larceny and habitual special robbery are in a substantive concurrent relationship.

Articles 331(2), 334(1), and 334(2) of the Criminal Act; Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Defendant

Defendant

Seoul District Court Decision 87 High Court Decision 433, 474 (Joint Court Decision)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for ten years.

The number of detention days prior to the pronouncement of the judgment below shall be 270 days included in the above sentence.

The first point of the grounds for appeal by the defendant and his state appointed defense counsel does not contain some of the facts charged in this case. The court below found the defendant guilty as to the whole of the facts charged in this case. The judgment of the court below is erroneous by misunderstanding the facts contrary to the rules of evidence, which affected the conclusion of the judgment, and the second point is unfair because the amount of the sentence imposed by the court below is too excessive.

First, in light of the evidence duly examined and adopted as to the grounds for appeal of mistake of facts, there is sufficient reason to acknowledge the criminal facts of this case by the defendant, and there is no other error of mistake of facts.

Next, the court below ex officio examined the following facts of habitual larceny as follows: (a) 1-C at the time of original adjudication; (b) 2-B at the time of original adjudication; (c) 3-B; (c) 3-A; (c) 3-B; and 4-C; and (c) 4-B; and (d) 3-B; thus, it is obvious at the time of original adjudication that the crime of habitual robbery is punishable with comprehensive crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Robbery); (b) 3-B; and (c) 4-4; and (c) 3-4-4; and (c) 4-4 of the above Act, it is reasonable to view that the crime of habitual larceny and robbery are committed repeatedly in the same type of act. Since it is difficult to regard the larceny and robbery as the same type of act, each of the above acts of habitual larceny is a separate habitual crime; and (d) it is reasonable to reverse the judgment of the court below that there is an unfair sentencing under Article 5-4(3) of the above Criminal Act.

Therefore, a party member is reversed the judgment of the court below in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the evidence of the crime acknowledged by a member of the party and of the theft and robbery except for the habitual nature of the larceny is as stated in the corresponding column of the judgment of the court below, and therefore, all of them are cited pursuant to Article 369 of the same Act. The habituality of the larceny in the judgment of the court below is as stated in the first head of the judgment of the court below. The defendant, as stated in the first head of the judgment of the court, committed each larceny again in the judgment of the court below because it has not been long after being sentenced to two times and has not been long, can be recognized as habitualness in light of the motive, method, frequency, etc. of each larceny crime in the judgment. The habitualness of the robbery in the judgment of the court below can be recognized as having been committed repeatedly several times within a short period of time in light of the fact that the defendant committed the crime of special robbery and robbery in the judgment of the court below, the degree of his participation, and motive

Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 334(2) and (1) of the Criminal Act; Article 35 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 3-5(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 331(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 331(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 337 and Article 30 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 35 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 35(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 205(2) of the Act on the Aggravated Punishment of the Act.

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

A case where a judge’s normal study (Presiding Judge) is removed;