특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
Seized evidence referred to in subparagraphs 6 through 10 shall be confiscated.
1. The summary of the grounds for appeal (two years of imprisonment and of confiscation) by the lower court is too unreasonable.
2. We examine ex officio the grounds for appeal by the defendant before determining ex officio.
Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that where a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331 of the Criminal Act, or the attempts thereof, once again commits such crime, and is punished as a repeated crime, he/she shall be punished by imprisonment for not less than two years
In light of the legislative intent and form of the above provision and the differences between Article 35 of the Criminal Act, the above provision shall be interpreted to have created a new constituent element separate from Article 35 of the Criminal Act. Thus, the above statutory penalty stipulated in the above provision must be determined within the scope of the severe penalty for repeated crimes under Article 35 of the Criminal Act.
(2) Article 35 of the Criminal Act does not apply to a repeated crime under Article 35 of the Act on the Aggravated Punishment of Cumulative Offense. However, the lower court erred by misapprehending the legal doctrine on the interpretation of the provisions on the Aggravated Punishment of Cumulative Offense, thereby adversely affecting the conclusion of the judgment.
Therefore, the judgment of the court below cannot be maintained as it is.
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 ground that the above reasons for reversal of authority as above exist, and it is again decided as follows.
【Grounds for the Judgment of the Supreme Court which has been written] Criminal facts and summary of evidence are identical to facts constituting a crime and summary of evidence recognized by the court, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 331(1)1 of the Criminal Act concerning the crime committed.