특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
Defendant shall be punished by imprisonment for not less than two years and six months.
The seized diversand one (No. 1).
1. The decision of the court below on the summary of the grounds for appeal (two years and six months of imprisonment, confiscation) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal by the defendant for ex officio judgment.
A. Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016) provides that “If a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or for the attempts thereof, again commits such crime, and is punished as a repeated offense, the punishment as prescribed in paragraphs (1) through (4) shall be imposed, and Article 5-4(5) of the current Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as “Special Crimes Act”) different from that prescribed, “where a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331, 333 through 336, and 362 of the Criminal Act or an attempt thereof commits such crime again, he/she shall be punished by imprisonment for not more than two years as follows:
As such, Article 5-4(5) of the Aggravated Punishment Act provides that “Aggravated Punishment,” which is irrelevant to the former Act, is subdivided according to the classification of the types of punishment to be imposed under the following subparagraphs. In light of the difference in the above language and text, the statutory penalty under each subparagraph of Article 5-4(5) of the Aggravated Punishment Act again brings about repeated aggravation of statutory punishment for the same reason when Article 35(2) of the Aggravated Punishment Act applies again to the statutory penalty under each subparagraph of Article 5-4(5) of the Aggravated Punishment Act, it is reasonable to interpret that the statutory penalty under each subparagraph of Article 5-4(5) of the Aggravated Punishment Act is determined to be aggravated for the same reason, and therefore, Article 5-