가.특정범죄가중처벌등에관한법률위반(절도)나.야간건조물침입절도다.야간건조물침입절도미수[나.및다.인정된죄명:포괄하여특정범죄가중처벌등에관한법률위반(절도)]
A. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)
(b) Night building theft;
(c) Night buildings, homicides and attempted larceny;
[B] and the name of recognized crime: Specific crime Aggravated Punishment
Violation of the Punishment, etc. Act (Larceny)
A
Defendant
Attorney J (State Ship)
Seoul Eastern District Court Decision 2014No1778 Decided February 6, 2015
May 14, 2015
The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.
The grounds of appeal are examined.
The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “The Aggravated Punishment Act”) and Articles 330 and 342 of the Criminal Act to the facts charged in the instant case. Of Article 5-4(1) of the Aggravated Punishment Act, the part concerning Articles 330 and 342 of the Criminal Act (hereinafter “the instant legal provision”) is habitually punished than that of Articles 332, 330 and 342 of the Criminal Act (hereinafter “the instant penal provision”). Since the legal provision in the instant case is an essential element of the instant penal provision, by increasing the statutory penalty without adding any special aggravated constituent element, it would result in the prosecutor’s exclusive charge of indictment discretion, and thus, it would be inconsistent with the principle of equality and balance between the punishment and the penal provision in the instant case, which would result in any confusion in the application of the penal provision.
Therefore, in this case, prosecuted by applying the legal provisions of this case to the facts charged of committing an offense falling under the provisions of the Criminal Act, the court below should have deliberated and judged on whether or not the provisions of this case were unconstitutional or whether or not there was a need to amend the indictment to avoid the unconstitutional outcome following the application of the provisions of this case, but without examining it, erred by recognizing the guilty of the facts charged of violating the provisions of this case as
Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench
Supreme Court Decision 200
Justices Lee In-bok, Counsel for the appeal
Justices Kim Yong-deok
Justices Kim Gin-young