The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”), Articles 30, 331(1), and 342 of the Criminal Act to the facts charged in the instant case.

Of Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, Articles 330 and 331(1) of the Criminal Act and the part concerning the attempts thereof (hereinafter “instant provision”) purport that a person who habitually commits a crime under Articles 330 and 331(1) of the Criminal Act and Article 342 of the Criminal Act, which is an attempted crime, shall be punished by a more severe penalty than the statutory penalty prescribed under Article 332 of the Criminal Act (hereinafter “instant provision”), which is a penal provision for aggravated constituent elements.

However, the provisions of the Specific Crimes Aggravated Punishment Act, in addition to the elements of a crime of this case, provides that the statutory penalty is imposed only on the prosecutor’s discretion to prosecute by adding not entirely the elements of a specific aggravated element, and by adding only the elements of a specific aggravated element of a crime other than the elements of a crime of this case, causing confusion in the application of the law. Moreover, unlike the provisions of the Criminal Act, the statutory penalty of this case, unlike the punishment of this case, is added to the maximum and minimum term of imprisonment, raising the maximum and minimum term of imprisonment to three years, excluding the fine, and it can be said that there is no adequate justification and balance in the penal system as it is impossible to reduce attempted crimes, and therefore, it can be said that there is a serious imbalance of punishment depending on which provision is applied at the discretion of prosecution, which

Therefore, in this case, the above facts charged with committing an offense falling under the provisions of the Criminal Act are prosecuted by applying the provisions of the Specific Crimes Aggravated Punishment Act. The court below erred by misapprehending the provisions of the Specific Crimes Aggravated Punishment Act.