Whether the crime of robbery, which shows the habitual appearance of robbery, is related to the crime of habitual robbery under Article 5-4(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (affirmative)

In the event that a criminal who has committed habitual robbery as prescribed in Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes committed robbery in addition to the crime, was engaged in robbery for the purpose of habitually robbery, but the robbery does not reach robbery and even in the robbery preliminary, if it seems to be the realization of habitual robbery, the preliminary act of robbery shall be deemed not to constitute only one crime of habitual robbery as prescribed in the above Act, which is incorporated into the crime of habitual robbery, and shall not constitute the crime of robbery separately from

Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 341 and 343 of the Criminal Act

Supreme Court en banc Decision 84Do1573 Decided December 26, 1984 (Gong1985, 283) Supreme Court Decision 2002Do429 Decided April 26, 2002 (Gong2002Sang, 1312)

Defendant 1 and one other

Defendants

Attorney Kim Jong-chul

Seoul High Court Decision 2002No1561 delivered on September 4, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Examining the evidence cited by the judgment of the court of first instance as cited by the court below in light of the records, since it can be sufficiently recognized that the Defendants have a habit of robbery, there is no error of law by misapprehending the legal principles as to habitual offenders, as alleged in the ground of appeal.

2. ex officio, according to the reasoning of the judgment below and the judgment of the first instance as cited by the court below, the court below recognized each of the above crimes in collusion by the defendants as "Habitually taking another's property over seven times from the beginning of December 2001 to the beginning of January 2002 from the beginning of January 2002, and "the crime in which the defendants planned to take another's property over five times from the beginning of December 2001 to the beginning of January 2002", and "the crime in which the defendants planned to take another' property over five times from the beginning of January 2002 from the beginning of January 200." The court below applied Articles 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "Special Punishment, etc.") and Articles 334 (2) and (1), 333 of the Criminal Act, and Articles 343 and 30 of the Criminal Act as concurrent crimes.

However, in a case where a criminal who has committed habitual robbery as provided in Article 5-4 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes committed robbery in addition to the crime, was prepared for robbery for the purpose of habitually robbery, but it does not reach robbery and even if it appears to be the realization of habitual robbery, it shall be deemed that the robbery preliminary act constitutes only one crime of habitual robbery as provided in the above Act by absorbing it into the crime of habitual robbery and constitutes only one crime of habitual robbery as provided in the above Act and does not constitute a preliminary crime of robbery separately from the crime of habitual robbery (see Supreme Court en banc Decision 84Do1573, Dec. 26, 1984; 2002Do429, Apr. 26, 2002, etc.).

Therefore, the court below held that each of the above crimes committed by the defendants constitutes a crime of violation of Article 5-4 (3) of the Aggravated Punishment Act and a crime of robbery, and held that each of the above crimes is punished by concurrent crimes, it constitutes an unlawful act which affected the conclusion of the judgment by misapprehending the legal principles on the interpretation of Article 5-4 (3) of the Aggravated Punishment Act and the number of crimes.

3. Therefore, without examining the remaining grounds of appeal by the Defendants, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)