특정범죄가중처벌등에관한법률위반(절도)등
The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.
1. As to the part of the facts charged regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the summary of this part of the facts charged is that the Defendant was sentenced to imprisonment on three occasions with prison labor due to larceny, etc. on August 14, 2018 and completed the execution of the sentence on August 16, 2019, the Defendant stolen another’s property once on or around May 16, 2019, and attempted to steals or steals property on nine occasions in total from May 18, 2019 to June 17, 2019.
Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) amended by Act No. 13717, Jan. 6, 2016, provides that “If a person who has been sentenced more than three times to imprisonment for the crime under Articles 329 through 331, 333 through 336, 340 and 362 of the Criminal Act, or the attempts thereof, once again commits such crime, and is punished as a repeated offender, the person shall be punished aggravatingly as follows.” Article 5-4(5) of the same Act provides that “If a person who has been sentenced more than three times to imprisonment for the crime under Articles 329 through 331 of the Criminal Act (including an attempted crime) is punished, he/she shall be punished by imprisonment for not less than two years but not more than twenty years:
The legal provisions of this case aim at strengthening the statutory punishment on the thief who committed the crime repeatedly, and the system of the article provides certain elements of a crime, and the application requirements and effects are also provided differently from Article 35 of the Criminal Act.
In light of the legislative intent and form of the legal provision of this case and differences from Article 35 of the Criminal Act, the provision of this case should be interpreted as creating a new constituent element of punishment, which is heavier than the Criminal Act, in cases where a person who has been sentenced more than three times to imprisonment for committing a crime (including an attempted crime) under Articles 329 through 331 of the Criminal Act committed more than three times, separate from Article 35 of the Criminal Act.