Under the prosecution of the prosecutor belonging to the District Public Prosecutor’s Office, the District Public Prosecutor’s first instance court convicted the Defendant of the charges, applying Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”) and Article 329 of the Criminal Act, and sentenced the Defendant to one year of imprisonment with prison labor, after committing repeated crimes under Article 35 of the Criminal Act. This only appealed on the grounds of unreasonable sentencing.

A person shall be appointed.

2. Legal provisions which are subject to a proposal of unconstitutionality and the premise of judgment;

(a) Article 329 of the Criminal Act among Article 5-4 (5) 1 of the Specific Crimes Aggravated Punishment Act subject to the proposal (the same shall apply to the following new provisions)

A person shall be appointed.

A person shall be appointed.

Article 8 of the Criminal Code (Application of the General Provisions) The general provisions of this Act shall apply to such crimes as are provided by other Acts and subordinate statutes, except as otherwise provided by such Acts and subordinate statutes. Article 35 (Cumulative Offense) (1) Any person who commits a crime falling under imprisonment without prison labor or heavier punishment and then has completed or been exempted from such punishment, and thereby commits a crime exceeding three years, shall be punished as a repeated crime. (2) Punishment for a repeated crime may be aggravated up to twice the maximum term of that

B. The premise of the judgment

Since the upper limit of the punishment applicable to the above facts charged is different depending on whether the provision of the law subject to the proposal is unconstitutional, it affects the conclusion and order of the judgment of this case, the issue of whether the above provision of the law is unconstitutional is the premise of the judgment of this case.

3. Whether the provisions of the Acts subject to the proposal violate the Constitution.

A. As to Article 5-4(1) and (6) of the Specific Crimes Aggravated Punishment Act (amended by Act No. 13717, Jan. 6, 2016), the Constitutional Court rendered a decision of unconstitutionality on the grounds of illegality and imbalance in the punishment system or violations of the principle of no punishment without law and the principle of clarity (the Constitutional Court Order 2014Hun-Ba343, Feb. 26, 2015; the Constitutional Court Order 16Hun-Ba3, Nov. 26, 2015). Accordingly, the National Assembly amended the corresponding provision of the Specific Crimes Aggravated Punishment Act (Act No. 13717, Jan. 6, 2016; the former Act amended Article 5-4(5) which is commonly applied to the purpose of the unconstitutionality decision. When setting the statutory punishment on larceny of repeated crimes, the amendment of the statutory punishment stipulated in paragraphs (1) through (4) by citing the statutory punishment by type of crime.

The revision of the Criminal Code (Law No. 10259, April 15, 2010) raises the maximum penalty (15) and reflects consideration that if only a minimum of the statutory penalty for the larceny of repeated crimes is minimum, the range of the punishment is excessively expanded (see the examination report of the Legislation and Judiciary Committee (No. 1916918, No. 1918).

However, "Aggravated Punishment" was added to the revised Act, but there was confusion in practice. This is because Article 8 of the Criminal Act does not clearly state the effect that the aggravated provision of repeated crime is specially aggravated statutory punishment while excluding special provisions of general repeated crime under Article 35 of the Criminal Act, i.e., Article 5-4 (5) 1 of the Specific Crimes Aggravated Punishment Act, Article 329 of the Criminal Act, and Article 35 of the Criminal Act is a violation of Article 329 of the Criminal Act.In this regard, there was a confusion as to whether the provision of aggravated punishment should be additionally added to repeated crime, Article 35 of the Criminal Act was divided into practical cases adding aggravation of repeated crime, and non-working cases. In recent years, the Supreme Court Decision 2019Do18947 Decided May 14, 2020 that Article 35 of the former Criminal Act should be added to repeated crime [the Supreme Court Decision 200Do1654 decided May 14, 202).

As such, although the subject article added a sign "aggravated Punishment" to "a repeated crime", the meaning of "a special provision excluding the application of Article 35 of the General Provisions of the Criminal Act" or "aggravated Punishment" was enacted to the effect that it is only the special provision excluding the application of Article 35 of the General Provisions of the Criminal Act, or that it is only the adjustment of statutory punishment, it can not be easily confirmed. Therefore, if the general public, as well as judges, knows the applicable scope of the larceny of repeated crime, it is necessary to find the Supreme Court precedents and confirm it. As punishment is minor, the elements of punishment and statutory punishment should be specified. However, the phrase "a repeated crime" of the subject clause, and "aggravated punishment" of "aggravated Punishment" has been confused

B. If the scope of the criminal punishment in violation of the principle of proportionality is excessively wide, it is possible for the defendant to exercise arbitrary penal authority so that the prediction of the specific punishment would become significantly difficult, and the defendant faces the risk of causing severe punishment compared to the nature of the crime (see Constitutional Court en banc Decision 96Hun-Ga16, Sept. 25, 1997). In the process of amendment of the Act on the Aggravated Punishment of Specific Crimes or the formation of the recent Supreme Court’s recent precedents, Article 35 of the Criminal Act does not exclude the aggravation of repeated crimes, thereby causing the following problems in the case of larceny of repeated crimes.

① Not only can it be subject to a special aggravated punishment, but also, it will be subject to the aggravation of repeated crimes under Article 35 of the Criminal Act, which leads to the result of double evaluation that is aggravated for the same reason. ② The scope of punishment has become a maximum of 40 years from one year (in the case of discretionary mitigation) to 40 years (in the case of repeated crime under Article 35 of the Criminal Act) of the lower limit of imprisonment. The width of the punishment is very wide to the extent that it is difficult to find the purpose of the introduction of the maximum statutory punishment which was originally used for the

③ According to the prosecutor’s discretion of instituting a public prosecution, the Defendant may be punished by a fine as prescribed by the Criminal Act, and only by imprisonment aggravated pursuant to the Specific Crimes Aggravated Punishment Act may be punished. In such a case, concerns over the persons of the enforcement organ, which was previously presented, and the disadvantage of the people remain.

In light of the legal stability, the principle of no crime without the law requires the principle of liability to request the possibility of judgment on sentencing that conforms to individual responsibilities. Even if the general provisions of the Criminal Act recognize the necessity of special penal provisions as it is impossible to suppress crimes and defend social defense with respect to repeated crimes, it is deemed that a punishment of imprisonment with prison labor for thief crimes has been set excessively broad, which is between 1 and 40 years. This is contrary to the principle of proportionality.

4. Conclusion

Therefore, since Article 329 of the Criminal Act among Article 5-4 (5) 1 of the Specific Crimes Aggravated Punishment Act violates the Constitution, it shall be decided as per Disposition by the Constitutional Court's ex officio decision pursuant to Article 41 (1) of the Constitutional Court Act.

July 2, 2020

Judges Kim Jin-young

Judge Choi-hee Dong

[Judgment of the Supreme Court]

The practical example that Article 35 of the Criminal Act shall be aggravated for repeated crimes: Seoul Eastern District Court Decision 2018No1449 Decided January 10, 2019

[Judgment of the Supreme Court]