A. In light of the legal principles, the first out of the criminal records of larceny committed by the Defendant, who was sentenced to a suspended sentence of imprisonment, but the sentence of the suspended sentence became final and conclusive during the suspended sentence, and thus, it is unreasonable to apply Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes to the Defendant including the above previous criminal records (hereinafter “Special Act”).

B. The sentence sentenced by the lower court to the Defendant (one year of imprisonment) is too unreasonable.

2. Judgment on the grounds for appeal

A. Article 5-4(5) of the Act provides that “If a person who has been sentenced not less than three times to imprisonment due to a crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act or an attempt thereof commits again and is punished as a repeated crime, the person shall be punished aggravatingly as follows.”

In full view of the following: (a) the foregoing provision is a requirement for the composition of “person who has been sentenced at least three times”; (b) the special nature differs from the regulatory form, such as “a person who has been sentenced at least twice” in Article 5-4(6) of the Act; and (c) the proviso of Article 62(1) of the Criminal Act, which is similar to Article 5-4(5) of the Act and the statutory form, includes not only the sentence, but also the case where the sentence of suspension of execution becomes final and conclusive (see Supreme Court Decision 2006Do6196, Feb. 8, 2007, etc.). In full view of the foregoing, it is reasonable to interpret that the special case includes a case where a suspended sentence of imprisonment is imposed and the suspended sentence or the cancellation thereof is revoked.

According to the records, on July 13, 201, the defendant was sentenced to a suspended sentence of one year for special larceny, etc. at the Busan District Court, and judgment is rendered around that time.