2014Gohap504 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)

A

He/she shall file prosecutions, and conduct trials for the paper of transmission.

Attorney B

June 17, 2014

The prosecution of this case is dismissed.

1. Summary of the facts charged in this case

On August 8, 1996, the Defendant was sentenced to one year and six months of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., and on May 23, 2008, the Suwon District Court sentenced the Defendant to three years of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., and completed the execution of the sentence on March 15, 201.

A. On May 8, 201, at around 21:00 on May 21, 201, the Defendant: (a) invaded into the D Motor Vehicle Sales Business Office located in Gangwon-si, Gangwon-si, through the rear window; and (b) stolen the Plaintiff’s 14.5 million won of the market price, which was displayed on the parking lot with the vehicle heat chain in storage in the office.

나. 피고인은 성명불상자들과 함께 2011. 5. 9. 02:15경 경기 여주군 G에 있는 H에서 미리 준비한 빠루, 드라이버, 몽키스패너 등을 이용하여 위 매장 출입문 열쇠를 빠루로 젖히고 안으로 침입한 후, 진열장 유리를 드라이버로 열고 그 안에 진열되어 있던 피해자 | 소유의 커플반지 86개, 목걸이 59개, 여자반지 98개, 귀걸이 1개, 시계 2개 등 시가 58,770,000원 상당의 귀금속 246점을 가지고 나와 이를 절취하였다.

Accordingly, the defendant stolen the victims' property habitually in collaboration with those who did not receive their names.

2. Determination

A. In the case of habitual crimes, the effect of an indictment lies on the whole criminal facts that are identical to the facts charged. Moreover, the time of sentencing, which is the last time to deliberate on the facts, should be based on the time of the imposition of a sentence. As such, once a prosecutor institutes a prosecution for habitual fraud and then raises a public prosecution for part of the fraudulent acts, which is an independent habitual fraud crime, by the time of the indictment’s effect, until the time of the crime for habitual fraud, which is the facts charged, is first transferred, or later, the time of the crime for habitual fraud, which is the facts charged, cannot be allowed as it constitutes a double indictment for the same case in which the public prosecution was instituted (see, e.g., Supreme Court Decisions 9Do3929, Nov. 26, 199; 2001Do2196, Jul. 24, 2001). The same applies to the case where a prosecutor institutes a public prosecution for habitual larceny and then, by the time of final hearing, which is a possibility of the effect of the prosecution.

B. According to the records, the Defendant was prosecuted for committing a crime under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes on October 22, 2013 on the ground that he/she was sentenced to two or more times to imprisonment and again committed the same crime within three years after the execution of the sentence was completed, and on March 18, 2014, he/she was sentenced to imprisonment for four years and six months at the Seoul Central District Court, and the Defendant appealed and was pending in the appellate court as Seoul High Court 2014927. The facts charged above are the facts that the Defendant habitually stolen precious metals, etc. eight times from November 22, 2012 to December 27, 2012. However, the facts charged in the instant case also by the appellate court on April 30, 2014, separately from the case where the Defendant habitually committed a crime under Article 5-4(6) of the same Act.

Therefore, even if the time when the crime of habitual larceny was committed was already prosecuted, it is obvious that the two facts charged are identical even if the crime of habitual larceny is transferred to the appellate court.

3. Conclusion

Therefore, the public prosecution of this case is dismissed in accordance with Article 327 subparagraph 3 of the Criminal Procedure Act because it falls under the case in which the public prosecution is instituted again.

The judges of the presiding judge;

Judges Kim Gin-hee

Judges Lee Jae-ho