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Escopics
Defendant
Appellant. An appellant
Defendant
Prosecutor
The highest court, the court of first instance, and the court of first instance
Defense Counsel
Attorney Lee Jin-hun (Korean National Assembly)
Judgment of the lower court
Incheon District Court Decision 2014Gohap115 Decided July 25, 2014
Text
The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
Although the Defendant’s crime of this case was only one time and did not intend to provide money by selling stolen cell phones, but was stolen for his own use, it was not attributable to the Defendant’s theft habit, the lower court erred by misapprehending the legal doctrine as to the habituality of the larceny by misapprehending the fact that the lower court recognized that there was a habit of the larceny by having a higher weight in the Defendant’s criminal history of the larceny.
2. Determination
Habitualness in larceny refers to a habit that repeatedly commits the larceny. Determination of habituality ought to be made by comprehensively taking into account the existence of criminal records of the same kind and the frequency, period, motive, means, method, etc. of the crime in the case (see Supreme Court Decision 2004Do6176, May 11, 2006, etc.).
The court below acknowledged the following facts based on evidence duly adopted and examined: ① The defendant was sentenced to imprisonment for three years and six months from the Government's branch of the Seoul District Court on March 27, 1997 with prison labor for larceny, etc.; ② on November 29, 2012, the defendant was sentenced to imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., at the Seoul East District Court on November 29, 2012; ② the above crime was committed immediately before the crime of this case, and the crime of this case was committed by the defendant's 7 years and six months from punishment for the crime of this case. The defendant did not have any error in the misapprehension of the legal principles as to the crime of this case since the defendant's age was limited to 3 years and six months from punishment for larceny, etc., and the defendant did not have any error in the misapprehension of the legal principles as to the defendant's age or 4 months from the execution of the crime of this case.
3. Conclusion
Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act because it has no reason to appeal.
Judges Kim Heung-ung (Presiding Judge)