Cases of denying the recidivism risk of larceny under Article 5 (2) 1 of the Social Protection Act;

Even if a criminal record has been punished on nine occasions due to larceny, there is no specific punishment power for more than six years after being released from the military court, and the defendant has lived faithfully while committing an act, such as cryp and a cryp, during that period, and this crime is recognized as contingent, so the defendant has no habituality of the larceny and the risk of recidivism.

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 5 (2) 1 of the Social Protection Act

Defendant

Prosecutor and Defendant

Seoul District Court Decision 81 Gohap117, 81 High High Court Decision 22)

We reverse the original judgment.

A defendant shall be punished by imprisonment for not less than one year and six months.

90 days during the period of detention before the original sentence shall be included in the above sentence.

The protective custody claim against the requester for protective custody shall be dismissed.

The gist of the grounds of appeal No. 1 by the Defendant and a state appointed defense counsel is that the Defendant immediately set up a person injured in this case, which is far away from the point that the Defendant operates, but did not commit theft, despite the fact that the Defendant was not guilty, the lower court, based on Non-Indicted 1’s false statement, etc., which is a crime prevention unit of arresting the Defendant, found the facts without any evidence, or misleads the Defendant of the fact that he was punished by larceny, thereby having affected the conclusion of the judgment. The gist of the second point is that the lower court’s sentencing against the Defendant is too unreasonable and unfair. The summary of the grounds of appeal by the prosecutor is that the lower court’s sentencing against the Defendant is too unreasonable in light of the circumstances, etc., which are the previous seven criminal offenders of larceny.

First, we examine the defendant's assertion of mistake of facts, and compare the evidence adopted by the court below to recognize the defendant's thief crime with the records, it is sufficient to recognize the thief crime in the original adjudication by considering all the evidences, and it is sufficient to recognize the thief crime in the original adjudication. There is no error of law of misunderstanding of facts as pointed out in the arguments.

Next, prior to the judgment on the assertion of unfair sentencing by the defendant and prosecutor, the court below acknowledged original facts on the defendant's parole, and found the defendant as habitual larceny. However, according to the evidence at the time of death in the original judgment, the defendant, like the first head of the original judgment, has reached nine times before he was sentenced to punishment for larceny between March 6, 1964 and May 3, 1973, but on May 3, 1973, the Seoul Criminal Court sentenced the defendant to one year of imprisonment for special larceny and was sentenced to two months in prison due to night intrusion larceny before the suspension of execution, and the defendant was released from prison on August 15, 1974, and there was no other evidence to prove that the defendant had been sentenced to imprisonment for 10 years with prison labor until 6 years elapsed since he was released from prison (the scheduled date of termination of punishment: September 25, 1978), and there was no other evidence to prove that the defendant had been sentenced to criminal punishment by the court below on August 20, 197, 1978.

In addition, according to the reasoning of the judgment below, the court below recognized the defendant subject to protective custody as a habitual thief and recognized the risk of recidivism, and recognized the risk of recidivism pursuant to Article 5 (2) 1 of the Social Protection Act as the defendant subject to protective custody for 7 years pursuant to Article 5 (2) 1 of the Social Protection Act. However, considering that the defendant subject to protective custody does not have any habit of larceny and this case is recognized as an contingent crime, it is difficult to see that the defendant subject to protective custody has the risk of recidivism. Although there is no other evidence to acknowledge the risk of recidivism, the court below sentenced the defendant subject to protective custody to protective custody for the defendant subject to protective custody without any evidence, the court below erred by misapprehending the legal principles as to the risk of recidivism or committed the violation that recognized the risk without evidence,

Therefore, according to Article 364(2) of the Criminal Procedure Act and Article 42 of the Social Protection Act, the original judgment is reversed, and the judgment is again rendered as follows.

On March 3, 1981: around 04:05, the Defendant: (a) laid up the victim Nonindicted 3’s business management located in Dongdaemun-gu Seoul Dongdaemun-dong (hereinafter omitted), before the ordinary meeting of Nonindicted 3 (trade name omitted); (b) 40,000 won, which was accumulated before the ordinary meeting, and stolen it.

Statements to the purport that part of the facts stated in the judgment of the defendant and in the trial court

1. Statement to the effect that the witness of the court below corresponds to the facts in the court below's decision

1. Statement to the effect that part of the protocol of examination of the accused prepared by the public prosecutor corresponds to the facts indicated;

1. Statement to the effect that it conforms to the facts in the judgment among the statement statement made by the prosecutor against Nonindicted 1

A comprehensive certification is sufficient.

The judgment of the defendant shall be punished by imprisonment with prison labor within one year and six months within the scope of the term of punishment chosen by imprisonment among the prescribed penal amounts under Article 329 of the Criminal Act, and 90 days out of the detention days before the original sentence is imposed in accordance with Article 57 of the Criminal Act.

The summary of the facts charged against the defendant in this case is that the defendant committed the larceny in the judgment habitually, but there is no evidence to acknowledge that the defendant has a habit of larceny, as determined in the reasoning of the above reversal, and thus, the defendant should be acquitted of the above facts charged. However, the above facts charged include the facts charged of larceny, and in particular, the defendant should not be acquitted in the disposition as long as he is found guilty of the larceny as seen above.

On March 6, 1964, an applicant for the parole was sentenced to imprisonment with prison labor for a short term of 6 months, for a long term of 8 months, for larceny at night at the Seoul Criminal Court on March 29, 1965, one-year imprisonment with prison labor for larceny at night at the same court on March 19, 1966, ten-month imprisonment with prison labor for intrusion upon residence and larceny at the same court on February 5, 1968, 10-month imprisonment with prison labor for 10 months at the same court on February 26, 1969, 3 months at the same court on July 19, 1969, and 19-year imprisonment with prison labor for a prison term of 10 months at the same time on July 19, 1969, and 3 months at the same court on May 17, 1971.

It is so decided as per Disposition for the above reasons.

Judges Kim Young-jin (Presiding Judge)