In the case of choosing a fine among the statutory penalty, whether the repeated offender is more severe

The term "crimes equivalent to imprisonment without prison labor or heavier" as provided in Article 35 (1) of the Criminal Act means crimes punishable by imprisonment without prison labor or imprisonment without prison labor, and where a fine is selected among the statutory penalty, repeated crimes shall not be severe.

Article 35(1) of the Criminal Act

Supreme Court Decision 4294 Form841 Decided December 21, 1960, Supreme Court Decision 82Do1018 Decided July 27, 1982

Defendant

Defendant

Attorney Kim Young-soo

Jeju District Court Decision 82Gohap55 delivered on June 9, 1982

The judgment of the first instance is reversed.

Defendant shall be punished by imprisonment for three years and fine for 70,000 won.

60 days of detention before a judgment of the court of first instance is rendered shall be included in the above imprisonment.

When the above fine is not paid, the defendant shall be confined in the workhouse for the period calculated by converting the amount of KRW 2,000 into one day.

1. The defendant and the state appointed defense counsel's brief grounds of appeal are also examined.

The issue is that the first instance court recognized the habitualness of the defendant in the theft crime and sentenced the defendant to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is unfair, and that the defendant's crime of this case is due to the fact that the right to education and work guaranteed by the Constitution is not granted, and the defendant's responsibility is due to the fact that the defendant's crime of this case is not against the Constitution.

However, the above reasons are nothing more than claiming mistake of facts and unreasonable sentencing, or denying the criminal liability of the defendant without any grounds, and it cannot be viewed as an unnecessary ground of appeal as stipulated in Article 372 of the Criminal Procedure Act. Therefore, the argument is groundless.

2. However, the judgment of the court of first instance is found to be ex officio, and there are errors in the application of the following Acts and subordinate statutes.

(1) First, the first instance court applied Article 77 subparagraph 3 of the Road Traffic Act to the Defendant’s act of driving erroneous soil without a prescribed license. However, Article 77 subparagraph 3 of the Road Traffic Act was partially amended on December 31, 198, which was prior to the act on the market, and Article 77 subparagraph 3 of the Road Traffic Act was amended to a penal provision for a violation of prohibition, such as crossing, and the penal provision for a person operating a bicycle without a prescribed license as in this case is stipulated in subparagraph 4 of Article 77. Thus, the first instance court erred by applying the previous amended former Act, instead of applying the Act at the time of the act.

Second, the first instance court has selected a fine among the provisions of Articles 75 and 77 of the Road Traffic Act with respect to each act of violation of the Road Traffic Act, and has been convicted of repeated crime according to Article 35 of the Criminal Act on the ground that there is a previous conviction in the judgment.

However, “crimes punishable by imprisonment without prison labor or heavier” as provided in Article 35(1) of the Criminal Act refers to crimes punishable by imprisonment without prison labor or imprisonment without prison labor, and in the case of selecting a fine among the statutory penalty, repeated crimes cannot be subject to heavy punishment (see, e.g., Supreme Court Decisions 4294Do841, Dec. 21, 1960; 82Do1018, Jul. 27, 1982). In that sense, the first instance court erred in applying the Act.

(2) Ultimately, the judgment of the court of first instance cannot be reversed, and thus, it is deemed sufficient to render a judgment at a party member based on the records of trial and the evidence examined by the court of first instance. Therefore, it is reasonable to

The relationship of facts and evidence acknowledged by a member against the defendant is the same as the time of the first trial, and they are cited as it is.

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act"), Article 329 of the Criminal Act, and Article 29 of the Criminal Act, the point of habitual larceny in the judgment of the defendant in the judgment of the non-competence of the law, falls under Article 75 subparagraph 1, Article 38, Article 55 of the Road Traffic Act, subparagraph 4, Article 77, Article 38, and Article 55 of the same Act, and Article 77 subparagraph 4 of the Road Traffic Act, Article 55 of the Road Traffic Act, and Article 7 of the same Act, and the sentence of imprisonment with prison labor shall be imposed on the violation of the Special Act. Since the defendant had a previous conviction in the judgment of the court, the sentence of imprisonment with prison labor shall be imposed within the limit of Article 35 of the Criminal Act and Article 42 of the same Act shall be imposed on the concurrent offender within the limit of Article 30 of the same Act, and the sentence of imprisonment with prison labor shall not be imposed within the maximum of Article 30 of the same Act.

Justices Lee Lee Sung-soo (Presiding Justice)