Aggravated Punishment of Repeated Bodily Injury Resulting from Robbery under Article 3 of the Act on Special Cases Concerning the Punishment of Specific Violent Crimes Case

[20-2(B) KCCR 523, 2007Hun-Ka10·16 (consolidated), December 26, 2008]

In this case, the Constitutional Court decided unconstitutional the part of Article 3 of the "Act on Special Cases Concerning the Punishment of Specific Violent Crimes" (hereinafter "the Special Violent Crimes Act" and, when specifically referring to the part of Article 3 concerning the following, "the Provision"), which concerns the aggravation for repeated offense of any person who commits or attempts to commit a crime as prescribed by Article 337 (bodily injury resulting from robbery or robbery resulting in bodily injury) of the Criminal Act after having been sentenced to punishment for a specific violent crime within 3 years after the date on which the execution of punishment has been completed or exempted and is subject to aggravated punishment in accordance with Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "the Aggravated Punishment Act"), on the ground that the Provision violates the principle of responsibility, which requires proportionality between liability and punishment, as well as the principle of equality due to disrupted balance in the punishment system, thereby holding the Provision unconstitutional.

Background of the Case

Requesting petitioner of the underlying cases were sentenced to prison for bodily injury resulting from robbery, etc. and, within three years after execution of the punishment, respectively recommitted crimes such as bodily injury resulting from robbery. When the requesting petitioner had their term of imprisonment doubled under Article 5-5 of the Aggravated Punishment Act (concerning aggravated punishment of recidivists committing injury resulting from robbery, etc.) and Article 3 of the Special Violent Crimes Act (aggravation of punishment for repeated crimes), they filed a motion to request for a constitutional review of Article 3 of the Special Violent Crimes Act

with the respective competent courts and the courts requested the case to the Constitutional Court for review of the constitutionality of the statute.

Summary of Decision

In an opinion of 6 to 3, the Constitutional Court decided that the Provision violates the Constitution for the following reasons:

I. Majority Opinion of Six Justices

A.The penalty in effect becomes capital punishment, life imprisonment or prison term not less than 20 years in cases stipulated in the Provision with application of both the Article 5-5 of the Aggravated Punishment Act and Article 3 of the Special Violent Crimes Act, and the two provisions double aggravate the punishment of crimes for the single purpose of safeguarding people's life and body against repeated crimes such as injury resulting from robbery and protecting the society from crimes.

According to the Provision, the imprisonment term can nearly be triple aggravated from not less than seven years as prescribed by Article 337 of the Criminal Act to not less than 20 years through application of Article 3 of the Special Violent Crime in every case when formal conditions for repeat offense such as "existence of the repeated crime" and the "term between the first and second offense" in Article 5-5 of the Aggravated Punishment Act are met. This, in effect, allows the minimum punishment in question to exceed the maximum imprisonment term of 15 years as prescribed by the Criminal Act, which therefore leads to too heavy a penalty which is evidently more than necessary in achieving the original function and purpose of the punishment. This, as a result, is contrary to the principle of responsibility which requires proportionality between liability and punishment.

B.The punishment of repeat offenses or attempts thereof regulated by Article 337 of the Criminal Act may vary greatly depending on whether Article 5-5 of the Aggravated Punishment Act is applied,

ranging from "imprisonment for life or not less than 14 years" to "capital punishment, imprisonment for life or not less than 20 years". If Article 5-5 of the Aggravated Punishment Act is applied and life imprisonment is decided, Article 3 of the Special Violent Crimes Act may not be applied for repeated crimes, in which case the punishment thereafter goes down to imprisonment not less than 7 years but not more than 15 years if statutory mitigation and mitigation in extenuation of circumstances apply. On the contrary, if imprisonment for a limited term is decided and the punishment is aggravated according to Article 3 of the Special Violent Crimes Act, the penalty will be not less than 10 years but not more than 12 and a half years even if the punishment is mitigated afterwards, which is unreasonable as the minimum punishment of the lightest imprisonment for a limited term is more severe than life imprisonment sentenced under Article 5-5 of the Aggravated Punishment Act. Also, in cases where Article 3 of the Aggravated Punishment Act is applied to each regulation under the Criminal Act, the term for limited imprisonment is the same when the first and second offenses are either injury resulting from robbery or robbery resulting in injury or the more severe crimes such as rape resulting in death, robbery resulting in death and injury resulting from piracy at sea. This leads to arbitrary and equal treatment of crimes such as robbery resulting in injury, rape resulting in death, robbery resulting in death, injury resulting from piracy at sea, which in fact should be treated differently in sentencing according to discrepancy in the legal interest to be protected and crime severity. Behind such an unreasonable outcome lies the systemic illegitimacy of punishment within the Provision.

C.Ultimately, the Provision contradicts the principle of responsibility that requires proportionality between liability and punishment as well as the principle of equality for disruption of balance in the punishment system, which is ultimately against the Constitution.

2. Dissenting Opinion of Three Justices (Constitutional)

The Provision stipulates double aggravation of statutory punishment only in cases where both the first and second offenses are specific

violent crimes that are bad in nature, highly likely to be subjected to condemnation and against society and humanity that cause severe damage. The Provision has its legislative purpose in protecting people's life and body and guarding the society against crimes through aggravation of punishment for specific violent crimes - heinous crimes against society and humanity, and aggravation of punishment is applied only to those who have committed a specific violent crime again after having been convicted of the same specific violent crime with more crime severity. Considering that such cases are more liable to condemnation, antisocial nature and responsibility as well as demands a special means to achieving the purpose of crime prevention and social safety, the Provision hardly violates the principle of responsibility by imposing overly excessive punishment or the principle of equality by disrupting the balance of punishment system. The Provision therefore is not against the Constitution.