특정범죄가중처벌등에관한법률위반(절도)등
The judgment below
The guilty portion shall be reversed.
A defendant shall be punished by imprisonment for a term of one year and four months.
1. The summary of the grounds for appeal (defendants) by the lower court (one year and nine months of imprisonment) 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 “instant provision”) amended by Act No. 13717, Jan. 6, 2016, separately from Article 35 of the Criminal Act, should be interpreted as creating a new constituent element of a crime that is heavier than the Criminal Act in cases where a person who has been sentenced at least three times to imprisonment for committing a crime (including a criminal attempt) under Articles 329 through 331 of the Criminal Act again commits the relevant crime during the period of repeated crime.
Therefore, the punishment for a repeated crime under Article 35 of the Criminal Act should be determined within the scope of the heavier penalty for a repeated crime under Article 35 of the Criminal Act.
(2) Article 35 of the Criminal Act does not apply to a repeated crime under Article 35 of the Criminal Act in determining the applicable sentence (see, e.g., Supreme Court Decision 2019Do18947, May 14, 2020). Nevertheless, the lower court erred by misapprehending the legal doctrine on the interpretation of the legal provisions of this case, thereby adversely affecting the
3. Accordingly, the judgment of the court below is reversed by ex officio pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed, and it is again decided as follows through pleading.
[Discied reasoning of the judgment below] Criminal facts and summary of evidence recognized by this court, and summary of evidence, except that the victim's name "I" as stated in No. 3 of the annual crime sight table as "O" is the same as the corresponding column of the judgment of the court below, and therefore, it shall be cited as it is in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes and the Selection of Punishment for Criminal Crimes.