폭력행위등처벌에관한법률위반(집단ㆍ흉기등폭행)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
1. The sentencing of the lower court (three years of imprisonment) is too unreasonable as the gist of the grounds for appeal is too unreasonable.
2. The purport of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is to examine ex officio prior to the judgment on the grounds for appeal by the defendant ex officio, that where a person who has been sentenced not less than three times to imprisonment for a crime as prescribed in Article 5-4(1), (3), or (4) of the same Act, or the attempts thereof, is punished as a repeated offense for committing a crime again, even in a case where habituality is not recognized, it is reasonable to determine the punishment for a habitual offender within the scope of the term of punishment imposed again for a repeated crime, as prescribed in paragraphs (1) through (4).
(2) According to the records, the Defendant was sentenced to two years for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) at the Changwon District Court’s branch on January 22, 2008 and completed the execution of the sentence on October 21, 2009. Thus, the Defendant committed a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) at January 5, 2012 (No. 2012Da1569) and May 26, 2012 (No. 2012No. 2937) and committed a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) within three years from the completion of the execution of the above sentence, and the Defendant committed a violation within the scope of the period of punishment imposed for a repeated offender under Article 35 of the Criminal Act, and the lower court erred by omitting a repeated offender’s punishment.
Therefore, the judgment of the court below is no longer maintained as it violated the law and affected the conclusion of the judgment.
3. Thus, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again decided as follows after oral argument.
Criminal facts
Criminal facts recognized by the court as well as the summary of the evidence.