가.특정범죄가중처벌등에관한법률위반(절도)·나.주거침입
2019Do18947 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)
(b) Intrusion upon residence;
Defendant
Prosecutor
Attorney O Dong-sung (Korean National Assembly)
Suwon District Court Decision 2019Do2555 Decided November 28, 2019
May 14, 2020
The judgment of the court of first instance shall be reversed, and the case shall be remanded to the District Court.
1. The gist of this part of the public prosecution against the violation of the Act on the Punishment of Specific Crimes (Larceny) is that the criminal defendant was sentenced to imprisonment for three times or more due to larceny, etc., and the enforcement of the punishment is terminated on August 14, 2018, and the provision of Article 5-4 (5) of the Criminal Act (including the provision of Articles 329 through 31, 333, and 36 and 36 of the Criminal Act for the crime of larceny, which is separate from the punishment of the same offense, and the provision of Article 5-4 (5) of the Criminal Act for the crime of this case to be punished once or more than nine times in total during the period from May 18, 2019 to June 17, 2019). In light of the legislative purport of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "the Act on the Aggravated Punishment, etc. of Specific Crimes"), which is further prescribed in the penal provision for the crime of this case.
Nevertheless, on the ground that the lower court did not correspond to the special provisions on the aggravation of repeated crimes of this case, the part on the violation of the Specific Crimes Aggravated Punishment Act under Article 35 of the Criminal Act was not aggravated. Therefore, the lower court did not err by misapprehending the legal doctrine on the interpretation of the statutory provisions of this case, thereby affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error is with merit.
2. Scope of reversal
For the above reasons, the part of the judgment of the court below on the thief violation of the Specific Crimes Aggravated Punishment Act shall be reversed.
However, the lower court rendered a single sentence on the ground that this part of the facts charged and the remaining facts charged are in the concurrent crimes relationship under the former part of Article 37 of the Criminal Act, and thus, the lower court’s judgment should be reversed in its entirety.
3. Conclusion
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Sang-ok
Justices Ansan-chul
Jeju High Court Decision 201No. 50
Justices Kim Jong-hwan