특정범죄가중처벌등에관한법률위반(절도)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
1. Summary of grounds for appeal;
A. Although Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes was deleted, the court below erred by misapprehending the legal principles, which applied the above provision.
B. The lower court’s punishment (one year and six months of imprisonment) is too unreasonable.
2. First of all, we examine the Defendant’s assertion of misapprehension of the legal doctrine.
According to the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016) at the time of committing larceny on November 19, 2015, Article 5-4(5) and (1) of the same Act and Article 329 of the Criminal Act provide that any person who commits a crime under Article 5-4(5) and (1) of the same Act and Article 329 of the same Act shall be punished by imprisonment for life or for not less than three years.
However, the current Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act of Specific Crimes”) enforced on January 6, 2016 was amended as follows: (a) Article 5-4(1) of the same Act was deleted; and Article 5-4(5) of the same Act was amended as a person who has been sentenced to imprisonment not less than three times for a crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or for the attempted crime under Article 329 of the Criminal Act again was punished by imprisonment for not less than two years but not more than twenty years.
Therefore, since the Defendant’s punishment was modified by the amendment of the former Act after November 19, 2015, the lower court should have applied the main text of Article 8 and Article 1(2) of the Criminal Act, not Articles 5-4(5) and (1) of the former Act on the Aggravated Punishment of Specific Crimes (Amended by Act No. 13717, Jan. 6, 2016); Article 329 of the Criminal Act, rather than Article 5-4(5)1 of the current Act on the Aggravated Punishment of Specific Crimes; Article 329 of the Criminal Act, which is a new corporation, should have been applied.
Therefore, the Defendant’s assertion of misapprehension of the legal doctrine that points out the error of the judgment below is reasonable.
3. Thus, the defendant's appeal is reasonable, and the judgment of the court below is made in accordance with Article 364 (6) of the Criminal Procedure Act, without further proceeding to decide on the unfair argument of sentencing.