[특정범죄가중처벌등에관한법률위반(절도)][공1994.11.1.(979),2915]
Whether a repeated crime should be added to the statutory penalty prescribed in paragraphs (1) through (4) concerning habitual offenders in cases falling under a violation of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes
The purport of the provision of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is that where a person who has been sentenced not less than three times to imprisonment for a crime prescribed in paragraphs (1), (3) or (4) of the same Act, or for the attempts thereof, is punished for a repeated crime by committing it again, even in cases where habituality is not recognized, the punishment shall be imposed in accordance with the statutory punishment prescribed in paragraphs (1) through (4) of the same Act. Therefore, it is reasonable to determine the applicable punishment within the scope of the severe penalty for a repeated crime again.
Article 5-4 (5) of the Aggravated Punishment Act
[Plaintiff-Appellee] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellee)
Defendant
Defendant
Attorney Lee Byung-chul
Gwangju High Court Decision 94No249 delivered on April 29, 1994
The appeal is dismissed. 110 days out of the number of detention days after the appeal shall be included in the original sentence.
1. We examine the Defendant’s grounds of appeal.
The issue is that the sentencing of the first instance court maintained by the court below is excessive, or in this case where a sentence of less than 10 years is imposed, an unreasonable sentencing decision cannot be a legitimate ground for appeal. Therefore, the issue is without merit.
2. We examine the grounds for appeal by a state appointed defense counsel.
(1) On the first ground for appeal
The purpose of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes Act") is to stipulate that if a person who has been sentenced not less than three times to imprisonment for a crime prescribed in Article 5-4(1), (3), or (4) of the same Act, or for the attempts thereof, is punished as a repeated crime again because he/she again commits such a crime, even if not recognized as habituality, it shall be punished in accordance with the statutory penalty prescribed in paragraphs (1) through (4) of the same Act. Therefore, it is reasonable to determine the applicable sentence within the scope of the severe penalty for a repeated crime again (see Supreme Court Decision 82Do1865, Oct. 12, 1982).
Therefore, the first instance judgment maintained by the court below applied Article 5-4 (5) of the Aggravated Punishment Act to the defendant's act and applied Article 5-4 (5) of the Aggravated Punishment Act again, and it is justifiable to apply Article 35 of the Aggravated Punishment Act to apply the provision on aggravation of repeated crimes. On the premise that the above special provision on aggravation of repeated crimes under Article 5-4 (5) of the Aggravated Punishment Act is a special provision on aggravation of repeated crimes, it is not reasonable to apply
(2) On the second ground for appeal
In light of the reasoning of the judgment of the court below and the records of the court of first instance, it is proper that the court below judged that there is no reasonable ground for appeal by the defendant, and there is no error of law as to misunderstanding the meaning of "reasonable reason" under Article 24 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and the application of
3. Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-soo (Presiding Justice)