특정범죄가중처벌등에관한법률위반(절도)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
1. Summary of grounds for appeal;
A. Legal principles are inconsistent with the principle of absence of one day and the principle of prohibition of double punishment, and the principle of equality, to punish a defendant as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) on the ground that he/she had a record of punishment for larceny in the past.
B. At the time of committing the instant crime, the Defendant was physically and mentally weak due to mental illness, etc.
(c)
The punishment of the court below (two years of imprisonment) which is unfair in sentencing is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal by the defendant.
Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “the provisions of this case”) that was amended by Act No. 13717, Jan. 6, 2016, separately from Article 35 (Cumulative Offense) of the Criminal Act, should be interpreted as creating a new element of punishment, which is heavier than that of the Criminal Act, in cases where a person who has been sentenced to imprisonment at least three times for committing a crime under Articles 329 through 331 of the Criminal Act (including non-offenders) and again commits the relevant crime during the period of the repeated crime.
Therefore, the punishment for a repeated crime under Article 35 of the Criminal Act should be determined within the scope of the term of punishment, once the punishment imposed under the provision of the Act of this case is aggravated (see Supreme Court Decision 2019Do18947, May 14, 2020). However, the lower court erred by misapprehending the legal doctrine on the interpretation of the provision of the Act of this case, thereby adversely affecting the conclusion of the judgment.
However, notwithstanding the above reasons for reversal ex officio, the defendant's misunderstanding of the legal principles and his argument of mental and physical weakness is still subject to the judgment of this court, and this is examined below.
3. The legal provisions of this case regarding the Defendant’s assertion of misunderstanding of the legal doctrine have been sentenced to imprisonment not less than three times with prison labor for the former and the latter.