특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
1. The sentence imposed by the court below (one year and six months of imprisonment) is too unreasonable.
2. Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes separate from Article 35 of the Criminal Act, where a person who has been sentenced at least three times to imprisonment for committing a crime (including a repeated crime) under Articles 329 through 331 of the Criminal Act again commits the relevant crime during the period of repeated crime, it is necessary to interpret that a new element of punishment was created, which is heavier than that of the Criminal Act. As such, the punishment under Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes should be again determined within the scope of the severe term of punishment imposed for a repeated crime under Article 35 of the Criminal Act (see, e.g., Supreme Court Decision 2019Do18947, May 14, 2020). On the contrary, the lower court did not punish a repeated crime under Article 35 of the Criminal Act on the ground that Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides for an aggravated punishment as part of the constituent elements.
Therefore, the lower court erred by misapprehending the interpretation of the provision of Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and the legal doctrine on repeated crimes, which affected the conclusion of the judgment, and thus, the lower judgment cannot be
3. Accordingly, 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, on the grounds of the above ex officio reversal, and it is again decided as follows.
Criminal facts
The summary of the facts charged and the summary of the evidence acknowledged by this court is the same as the relevant column of the judgment below, in addition to the fact that the part is deemed to be “an offense of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials)” due to the crime of indecent act and inducement in the second place of the judgment of the court below.