(a) In cases falling under the violation of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether repeated crimes should be aggravated in the statutory penalty provided for in paragraphs (1) through (4) concerning habitual offenders;

B. Whether the authenticity of the statement as to the person who made the original statement can be proven solely on the ground that the prosecutor's office and the police made the true statement at the court and the fact that the person made the original statement was not signed on the statement.

C. The crime of larceny and the acquisition of stolen property should be based on the specific facts of the acquisition of stolen property, and the reason under Article 6(2)6 of the Social Protection Act should be considered to determine whether it constitutes the same or similar crime.

A. The purport of the provision of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is that where a person who has been sentenced not less than three times to imprisonment for the crime as prescribed in Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or the attempts thereof, is punished as a repeated crime by committing again such crime, even in cases where habitual nature is not recognized, the punishment for the habitual offender is to be imposed in accordance with the statutory punishment as prescribed in paragraphs (1) through (4). Therefore, it is reasonable to set the applicable sentence within the scope of the aggravated punishment again for the crime as prescribed in paragraphs (1) through (4).

B. The written statement of a public prosecutor and a person other than the defendant in the preparation of a judicial police assistant may be admitted as evidence when it is proven that the establishment is authentic by the person who made the original statement at a preparatory hearing or at a public trial, and only the person who made the original statement at the public prosecutor's office or the police's office made the true statement and made the fact that he did not sign the written statement, it is difficult to see that the authenticity of the written statement is established, and it is hard to see that the written statement is true and correct

C. The crime of larceny and stolen property cannot be considered as a crime of the same kind or similar under Article 6 (2) 1 through 5 of the Social Protection Act, and ultimately, it cannot be seen as a crime of the same kind or similar under subparagraph 6 of the same Article. Even if the crime of stolen property has the nature of ex post facto crime of larceny, the infringement legal interest is identical, and the tendency of crime is similar to that of larceny, such general nature alone cannot be readily concluded as a crime of the same kind or similar to larceny. In light of the specific facts of the acquisition of stolen property, it should be determined by considering the above subparagraph 6, such as the nature of the crime, the means and method of the crime, the tendency of the crime, and the type of the crime.

Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 312 of the Criminal Procedure Act, and Article 6(2)6 of the Social Protection Act

Supreme Court Decision 82Do937,82 Inspectordo176 Delivered on June 8, 1982

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Park Jong-soo

Daegu High Court Decision 82No26,82No70 delivered on June 24, 1982

The part of the lower judgment pertaining to custody claim is reversed, and that part of the case is remanded to the Daegu High Court.

The defendant's appeal against the prosecuted case shall be dismissed.

60 days under detention after an appeal shall be included in the principal sentence of the accused case.

1. We examine the grounds of appeal as to the Defendant’s accused case.

According to the reasoning of the judgment of the court of first instance cited by the court below, it is sufficiently recognized that the acquisition of stolens in the judgment of the defendant is sufficiently recognized and there is no illegality in the process of the evidence preparation. Thus, in this case where a sentence of less than 10 years is imposed on the defendant, an unreasonable sentencing decision cannot be a legitimate ground for appeal in light of the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act.

2. Defendant’s defense counsel’s grounds of appeal Nos. 1 and 3 are also examined.

The purpose of the provision of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Cases Act") is to stipulate that in case where a person who has been sentenced not less than three times to imprisonment for the crime as prescribed in Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or the attempts thereof, again commits such crime and is punished as a repeated offense, if he is punished as a repeated offense by committing such crime, the punishment shall be imposed according to the statutory penalty as prescribed in paragraphs (1) through (4) concerning the habitual offender even in case where the habitual nature is not recognized, it is reasonable to determine the punishment for a repeated crime within the scope of the term of the repeated offense.

Therefore, after applying Article 5-4 (5) of the Aggravated Punishment Act to the defendant's act of holding, the court below is just in taking a measure again emphasizing a repeated offender pursuant to Article 35 of the Criminal Act, and contrary to this, it is not possible to discuss that the aggravation of a repeated offender is unfair pursuant to Article 35 of the Criminal Act on the premise that Article 5-4 (5) of the Aggravated Punishment Act is a special provision for aggravation of a repeated offender.

In addition, although there is no trace of recognizing the habitual crime of stolen property among the criminal facts of the defendant recognized by the court below, the court below applied Article 5-4 (5) and (4) of the Aggravated Punishment Act. Since Article 363 of the Aggravated Punishment Act concerning habitual stolen acquisition, etc. is a provision of aggravated punishment under Article 363 of the Aggravated Punishment Act, the court below ultimately erred by misapprehending the legal principles of habitual stolen acquisition under Article 363 of the Criminal Act or by recognizing habitual crimes without any evidence in violation of the rules of evidence.

However, as mentioned above, the application of Article 5-4 (4) of the Aggravated Punishment Act to the defendant's act falling under Article 5-4 (5) of the Aggravated Punishment Act is limited to the purport of applying the statutory punishment prescribed in Article 5-4 (4) of the Aggravated Punishment Act mutatis mutandis, and the above decision's act is not regarded as a crime of habitual acquisition of stolen property as prescribed in Article 5-4 (4)

3. We examine the grounds of appeal No. 2 by the same attorney.

According to the records, the prosecutor stated the crime of acquiring stolen property under the preliminary criminal name in addition to the facts charged for acquiring stolen property in addition to the facts charged for the primary charge of violation of the Act on the Aggravated Punishment and the modification of the custody claim, but later the modification of the indictment again, and then withdraws the name of the preliminary crime and add Article 5-4 (5) of the Aggravated Punishment Act to the preliminary applicable provisions.

As above, even if the applicable provisions of the preliminary charges are the same as the applicable provisions of the primary charges, it is clear that the applicable provisions of the preliminary charges are the applicable provisions of the indictment itself. Therefore, it is not clear that the applicable provisions of the preliminary charges are unclear.

In addition, if the crime is a violation of special law, the name of the crime to be indicated in the indictment shall be the violation of special law, but as long as the applicable provisions of criminal facts and special law are indicated, it shall not be deemed that there is an error of law because it did not indicate the crime of violation of special law under the name of the crime. Thus, there is no error of law by misunderstanding the scope of the court's trial and the legal principles on the modification of the indictment in the action permitted by the court

4. We examine the grounds of appeal No. 4 by the same attorney.

The written statement of a public prosecutor and a person other than the defendant in the preparation of a judicial police assistant may be admitted as evidence when it is proved that the original person makes the statement at a preparatory hearing or at a trial date, and only when the original person makes a statement about the prosecutor's examination at the court that he/she made the true statement and made the fact that he/she made the signature without the signature, it is difficult to conclude that the authenticity of the written statement is proven.

However, in this case, it is evident in the record that the prosecutor heard the contents of each statement made by the prosecutor and the prosecutor's prosecutor's prosecutor's prosecutor's prosecutor's and assistant judicial police's each statement made by the prosecutor, and the contents of the statement are inconsistent with the facts and affixed with the statement, and it is obvious that the above statement made by the prosecutor was signed and sealed. Thus, the court below's decision that admitted the admissibility of each of the above statements made by the above people by such statement is justified and discussed.

5. The grounds of appeal concerning custody claim by the defendant and the defendant's state appointed defense counsel are examined as follows.

According to the reasoning of the judgment below, the court below held that the crime of larceny and the acquisition of stolen property, which is the criminal offense of this case, are crimes related to the same property, and the crime of stolen property has the nature of a crime after larceny, and that it is not possible or difficult for the owner or possessor to request recovery of all property, which is similar to the legal interests of the same or similar crime, and it is sufficient to recognize the defendant as a crime of the same or similar kind as stipulated in the Social Protection Act, and then applying Article 5 (2) 1 of the Social Protection Act to protective custody for seven years.

However, the crime of larceny and stolen property cannot be deemed as a crime of the same kind or similar under Article 6 (2) 1 through 5 of the Social Protection Act. Ultimately, it is not possible to determine whether the crime of larceny is identical or similar under the provisions of subparagraph 6 of the same paragraph. Thus, even though the crime of stolen property has the nature of ex post facto criminal punishment of larceny, such as the time of original adjudication, and the crime of infringement is a crime of the same kind and the trend of crime is similar to that of larceny, such general nature alone cannot be readily concluded as a crime of the same kind or similar

The court below should have determined the same or similar type of larceny, which is a criminal record, by taking into account the specific facts of the acquisition of stolens of this case, the reasons prescribed in subparagraph 6, such as the nature of the crime, the means and methods of the crime, the tendency of the crime, and the type of the crime.

Ultimately, the above judgment below erred by misapprehending the legal principles on crimes of the same kind or similar under Article 5 (2) 1 of the Social Protection Act and failing to exhaust all necessary deliberations. Therefore, the part of the judgment below concerning custody claim cannot be maintained and it is reasonable to discuss this point.

6. Therefore, the defendant's appeal regarding a prosecuted case shall be dismissed, and the sixty days of detention days shall be included in the original sentence after the appeal. The part of the judgment of the court below concerning custody application among the judgment below shall be reversed and remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)