특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
1. The following facts are acknowledged according to the progress records of the case.
A. On September 12, 2001, the Daegu District Court rendered a two-year sentence of imprisonment by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016; hereinafter “former Specific Crimes Act”), Article 329 of the Criminal Act with respect to the Defendant’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 201; hereinafter “former Specific Crimes Act”).
B. Accordingly, the Defendant appealed, and the Daegu District Court reversed the above judgment on November 16, 2001, and sentenced the Defendant to imprisonment with prison labor for one year and six months by applying Article 5-4(1) of the former Act and Article 329 of the Criminal Act (the above court Decision No. 3334, Nov. 24, 2001; hereinafter “the judgment subject to a retrial”). The above judgment became final and conclusive as waiver of the Defendant’s right to appeal on November 24, 2001.
(c)
On February 26, 2015, the Constitutional Court rendered a decision that Article 329 of the Criminal Act, among Article 5-4(1) of the former Act, Article 5-4(1) of the Act, should be unconstitutional (see Constitutional Court Decision 2014Hun-Ga16, 19, 23 (Consolidation)). Accordingly, this Court rendered a decision to conduct a retrial based on the judgment that “The legal provisions applicable to the judgment subject to a retrial retroactively lose its effect, there is a ground for retrial prescribed in Article 47(4) of the Constitutional Court Act in the judgment subject to a retrial” (see Supreme Court Decision 2017No. 38, supra). < Amended by Presidential Decree No. 20148, Feb. 22, 2018>
3. Prior to the judgment on the Defendant’s improper assertion of sentencing ex officio, prior to the judgment on the Defendant’s ex officio, the Prosecutor applied for permission to amend the applicable provisions to “Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes” as “Habitual larceny,” and “Articles 332, 329, and 35 of the Criminal Act” in “Article 329 of the Criminal Act” as “Article 332, 329, and 35 of the Criminal Act,” and the judgment of the lower court was modified by this court’s permission.
Therefore, it is true.