A case recognizing habituality in light of the motive, method, etc. of committing a crime, which is committed on two occasions due to habitual special larceny, one time due to robbery, and the motive, method, etc. of committing a crime against the Act on the Aggravated Punishment, etc. of Specific Crimes

In the event the Defendant was punished once as a crime of robbery and two times as a habitual special larceny of the same type as the instant crime, and the sum of the term of punishment is the same or a similar crime in total in 14 years and six months, and the motive or method of the instant crime is not contingent, shock, or simple method, but a part of the Defendant, such as Co-Defendant 2, etc., conspired with several persons, such as Co-Defendant 2, etc., with the wind, and commits theft by means of a method of retailing the wallets using the face knife with the face knife, it is sufficient to recognize the habitualness and the risk of recidivism of the Defendant.

Article 5(2) and Article 6(2) of the Social Protection Act

[Plaintiff-Appellee] Plaintiff 1 and 3 others (Law Firm Han-do, Attorneys Park Jae-do et al., Counsel for plaintiff-appellee)

Defendant-Appellant 1 et al.

1. For the test and the test (as to the requester 2 for custody):

Attorney Ho-sik-type

Gwangju High Court Decision 90No286,90No20 decided August 30, 1990

Of the judgment of the court below, the part of the protective custody case against the requester 2 shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

The appeal filed by the petitioner who is concurrently the defendant shall be dismissed, and the period of detention shall be included in the imprisonment for 40 days after the appeal.

1. We examine the prosecutor’s grounds of appeal.

According to the records, the above applicant for protective custody cannot be deemed to have maintained the facts charged against the defendant 2 and the reasons for the request for protective custody. On February 23, 1972, the above applicant for protective custody was sentenced to imprisonment with prison labor for habitual special larceny, five years in the same court on February 27, 1975, seven years in prison due to robbery, and seven years in the same court on March 19, 1980, and the execution of the above final sentence was terminated on September 30, 1987, and it is hard to view the defendant's request for protective custody as the defendant 1, 3, 4, and 1. On October 31, 1989, the defendant's request for protective custody was habitually dismissed on the ground that it was hard to view the defendant's request for protective custody at the court of first instance as the defendant's last time, and the defendant's request for protective custody was found to have no risk of recidivism at the court of first instance on the ground that he had no risk of recidivism.

However, according to the confirmation of the judgment of the court of first instance maintained by the court below, a petitioner 2 was punished three times for the same or a similar crime, and the total term of the punishment has reached 14 years and six months (the crime of robbery and habitual special larceny constitutes a crime of the same or similar crime provided for in Article 6 (2) of the Social Protection Act and thus, it is erroneous in the judgment of the court of first instance that is not deemed to be a crime of the same or similar kind) and has been punished two times for habitual larceny of the same type as the crime of this case. It is not a motive, method, contingency, impulse, shock, or simple method, but it is not a motive, method, shock, or simple method of the crime of this case, but a part of the defendant 1 and other persons such as the petitioner 1 of the crime of this case committed a theft and retail act using a knife with the knife, and in light of these facts, it is sufficient to recognize the recidivism and risk of recidivism of the respondent 1 of this case.

According to the records, as shown in the judgment of the court below, the above applicant was engaged in livelihood business, such as acquiring a technician qualification in the prison and operating an Alhyer agency for two years after release, and the wife of the above applicant for identification was able to properly guide him in writing. However, the above Alhyer's agency was found to have been used as a collective place, such as gathering part of the defendants after the crime of this case (see the prosecutor's prosecutor's suspect examination as to co-defendant 3 and co-defendant 1). Thus, it is insufficient to consider the circumstance of operating the above agency as a material to deny the habitualness and risk of recidivism of the applicant for identification, and it is difficult to view the above applicant's habitualness and risk of repeating the crime of this case as at the time of the original trial. In addition, even if the crime of this case was committed by the suspicion of the accomplice, it is more supported by the probability of repeating the crime, and according to the records, it is difficult to view that the above applicant's agent's risk of repeating the crime of this case cannot be seen.

Ultimately, the court below erred by misapprehending the legal principles on the risk of habitual and recidivism, thereby affecting the conclusion of the judgment.

2. The grounds of appeal by the defendant and the defendant and the defense counsel are also examined.

Examining the evidence of the first instance judgment maintained by the court below in light of the records, we affirm the judgment of the court below which recognized the facts constituting the above defendant and the applicant for custody, and there is no error of law that affected the conclusion of the judgment by the evidence preparation in violation of the rules of evidence, such as the theory of lawsuit, and in this case where a sentence of less than 10 years is sentenced, the unfair sentencing does not constitute a legitimate ground for appeal.

3. Therefore, of the judgment below, the part of the protective custody case against the defendant 2 is reversed, and that part of the case is remanded to the court below. The defendant and the defendant 1's appeal are dismissed, and 40 days of detention days after the appeal are included in imprisonment. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)