특정범죄가중처벌등에관한법률위반(절도)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
1. The sentence of the lower court (one-year imprisonment) is too unreasonable as to the gist of the grounds for appeal.
2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant.
The main sentence of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes Act") shall be aggravated as follows 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 340 and 362 of the Criminal Act, or the attempts thereof, once again commits such crime, and is punished as a repeated crime:
"A person who commits a crime under any provision of Articles 329 through 331 of the Criminal Act (including an unclaimed crime)" and subparagraph 1 of the same paragraph shall be punished by imprisonment with prison labor for not less than two years but not more than twenty years.
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On the other hand, Article 8 of the Criminal Code applies to the crimes provided in other Acts and subordinate statutes.
Provided, That this shall not apply where otherwise provided in that Act.
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The main sentence of Article 5-4(5) of the Act should be regarded as a special provision on the aggravation of repeated crimes of other Acts and subordinate statutes.
The main sentence of Article 5-4 (5) of the Act does not contain any provision that “Aggravated punishment” shall be aggravated under the former special circumstances before the amendment by Act No. 13717, Jan. 6, 2016; and the main sentence of Article 5-4 (5) of the former Act provides that a person who has been sentenced not less than three times for committing a crime under Articles 329 through 331, 333 through 336, 340, or 362 of the Criminal Act, or for the attempts thereof, is punished as a repeated offense, even if the person who has been sentenced not less than three times for committing such crime, is punished as a repeated offense, the punishment of paragraphs (1) through (4) shall be punished.
The Supreme Court Decision 82Do1865 Decided October 12, 1982 ruled that it is reasonable to determine the punishment to be imposed within the scope of the aggravated punishment for repeated crimes again in the statutory penalty under each subparagraph of Article 5-4(5) of the former Act, which is referred to in each subparagraph of Article 5-4(5) of the Act.
The Court ruled.
From the perspective of B, the statutory penalty of each subparagraph of Article 5-4(5) of the Act is already a repeated offense.