특정범죄가중처벌등에관한법률위반(절도)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentence (two years of imprisonment) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
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 aggravated punishment for a repeated crime under Article 35 of the Criminal Act (see Supreme Court Decision 2019Do18947, May 14, 2020). Nevertheless, the lower court recognized the Defendant’s criminal record, which served as the ground for aggravated punishment, and did not add the aggravated punishment for a repeated crime in determining the punishment for the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the aggravated punishment for a repeated crime.
3. The judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's unfair argument of sentencing, and the judgment of the court below is reversed and it is again decided as follows.
【Grounds for a new judgment】 The facts constituting an offense and summary of evidence recognized by the court are identical to the facts constituting an offense and summary of evidence, and the summary of evidence are identical to each of the corresponding columns of the judgment below. Thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes as to the crime and Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 329, 330, and 35 of the Criminal Act (the theft of repeated crimes and repeated crime).