1. Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016; hereinafter “former Specific Crimes Aggravated Punishment Act”) 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 once again commits such crime and is punished as a repeated offense, Article 5-4(1) through (4) of the same Act shall be subject to the same punishment, and Article 329(1) of the same Act provides that a person who habitually commits a crime under Articles 329 through 331 of the Criminal Act or attempts to commit such crime shall be punished by imprisonment for life or for not less than three years.

However, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016; hereinafter “Aggravated Punishment, etc.”) provides that, in cases where a person is punished as a repeated offense as above, the punishment should be aggravated according to the classification of each subparagraph of the same paragraph, and, in cases where a person commits a crime under Articles 329 through 331 of the Criminal Act or an attempted crime, the statutory punishment was amended by stipulating that he/she shall be punished by imprisonment with prison labor for not less than two years but not more than 20 years. The purport of the provision is that even if a repeated offender, such as larceny, who meets the requirements for criminal power as prescribed in Article 5-4(5) of the former Specific Crimes Aggravated Punishment, etc. of Specific Crimes Act, the form and motive of the larceny, etc. are diverse, and thus, the previous penal provision that requires aggravated punishment with imprisonment

Therefore, this constitutes “when an act does not constitute a crime due to the amendment of a law after a crime or a punishment is more severe than the former Act” under Article 1(2) of the Criminal Act, and thus, the provisions of the Specific Crimes Aggravated Punishment Act shall also apply to a crime before the amendment (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

2. Of the facts charged against the Defendant, the lower court convicted the Defendant by applying Article 5-4(5) and (1) of the former Specific Crimes Aggravated Punishment Act, Articles 329, 330, and 331(2) of the Criminal Act to each of the facts charged that the Defendant was sentenced to imprisonment not less than three times due to night intrusion and larceny, and again committed a crime of larceny, night building intrusion, special larceny, etc. as stated in its reasoning during the period of repeated crime (hereinafter “instant facts charged”).

However, according to the above legal principles, the facts charged in this part cannot be punished pursuant to the provisions of the Act on the Aggravated Punishment of Specific Crimes, a corporation at the time of an act pursuant to Article 1(2) of the Criminal Act, and the corresponding provisions of the Act on the Aggravated Punishment of Specific Crimes, a new corporation, apply. Therefore, the judgment of the court below that applied the provisions of the former

Meanwhile, the lower court rendered a single sentence on the grounds that this part of the facts charged against the Defendant and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and eventually, the part of the lower judgment against the Defendant should be reversed in

3. Therefore, without examining the grounds of appeal, we reverse the part of the judgment below against the defendant, and remand this part of the case 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 Kim Shin (Presiding Justice)