Main Issues

In cases where a person is prosecuted under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether the person may be punished by applying Article 5-4 (1) without any changes in the indictment

Summary of Judgment

The provisions of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be punished as a statutory punishment provided for in the provisions of paragraphs (1) through (4) of the same Article even in cases where habituality is not recognized if a repeated crime is not recognized because the crime provided for in paragraph (1), (3) or (4) of the same Article has been repeatedly committed on three or more occasions and again commits the crime provided for in paragraph (5) of the same Article. However, Article 5-4 (1) of the same Act requires habitualness, while Article 5-4 (5) of the same Act requires that the crime is committed during the period of crime power and repeated crime, and therefore, Article 5-4 (5) of the same Act provides that punishment by applying Article 5-4 (1) of the same Act without any changes in the indictment is likely to pose a substantial disadvantage to the defendant's defense. Therefore, the punishment may not be imposed by applying Article 5-4 (5) of the same Act without any changes in the indictment even after the indictment was filed under paragraph (5) of

[Reference Provisions]

Article 5-4 (1) and (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 298 of the Criminal Procedure Act

Reference Cases

[Plaintiff-Appellant] Plaintiff 1 and 198 (Gong1990, 587 delivered on July 14, 1995) (Gong1137, 95Do554 delivered on July 14, 1995)

Escopics

Defendant

upper and high-ranking persons

Prosecutor

Defense Counsel

Attorney Lee Jin-bok

Judgment of the lower court

Seoul Central District Court Decision 2005No1827 Decided August 26, 2005

Text

The appeal is dismissed.

Reasons

We examine the grounds of appeal.