Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) amended by Act No. 13717, Jan. 6, 2016, provides that “If a person who has been sentenced more than three times to imprisonment for the crime under Articles 329 through 331, 333 through 336, 340 and 362 of the Criminal Act, or the attempts thereof, once again commits such crime, and is punished as a repeated offender, the person shall be punished aggravatingly as follows.” Article 5-4(5) of the same Act provides that “If a person who has been sentenced more than three times to imprisonment for the crime under Articles 329 through 331 of the Criminal Act (including an attempted crime) is punished, he/she shall be punished by imprisonment for not less than two years but not more than twenty years:

The legal provisions of this case aim at strengthening the statutory punishment on the thief who committed the crime repeatedly, and the system of the article provides certain elements of a crime, and the application requirements and effects are also provided differently from Article 35 of the Criminal Act.

In light of the legislative intent and form of the legal provision of this case and differences from Article 35 of the Criminal Act, the provision of this case should be interpreted as creating a new constituent element of punishment, which is heavier than the Criminal Act, in cases where a person who has been sentenced more than three times to imprisonment for committing a crime (including an attempted crime) under Articles 329 through 331 of the Criminal Act committed more than three times, separate from Article 35 of the Criminal Act.

Therefore, the punishment for a repeated crime under Article 35 of the Criminal Act should be determined within the scope of the heavier penalty for a repeated crime under Article 35 of the Criminal Act.

(see, e.g., Supreme Court Decision 2019Do18947, May 14, 2020). After applying the provision of the instant Act to the facts charged, the lower court again sentenced the same punishment as that of the first instance court while putting a repeated offender under Article 35 of the Criminal Act.

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