In a case where Article 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes concerning Aggravation of Aggravation of Cumulative Offense is stated in the indictment or the above provision is not added or modified as a applicable provision of Acts, whether the court may apply the above provision ex officio

Article 3 of the Act on Special Cases Concerning the Punishment of Specific Crimes provides that "where a person has been sentenced to punishment for a specific violent crime and has again committed a specific violent crime within three years after the completion of or exemption from such punishment, punishment shall be aggravated by up to twice the maximum term or the minimum term of punishment prescribed for such crime." This Article aims to strengthen the statutory punishment for repeated crimes of specific violent crimes, and its system is prescribed in a certain form, and the applicable requirements or effects are also prescribed differently from Article 35 of the Criminal Act. Thus, in light of the fact that the prosecutor has substantial influence on the defense of the defendant depending on whether Article 3 of the same Act is stipulated in the bill of indictment as the applicable provisions, the above provision shall be deemed as a provision establishing a new element, and it shall not be deemed as a provision supplementing Article 35 of the Criminal Act. Accordingly, in order to apply Article 3 of the same Act, the court shall enter the above provision in the bill of indictment or request the court to apply it by the addition or modification procedure of the applicable provisions ex officio.

Article 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes and Article 35 of the Criminal Act

Defendant

Defendant

Completion of species

Attorney Park Jae-in

Daegu District Court Decision 2007Gohap78 Decided June 13, 2007

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six years.

135 days of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

A. Points of mistake of facts

The defendant was guilty of committing a crime in the judgment of the court below because he did not assault the victim and forcibly take 500,000 won in cash, and the judgment of the court below is erroneous in the misunderstanding of facts.

B. The point of unfair sentencing

In light of the circumstances and consequences of the instant crime, the punishment of 10 years sentenced by the court below is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of fact

The defendant's assertion identical to the above reasons for appeal at the court below, and the court below rejected the defendant's assertion and absence at the site (al.e., the defendant's assertion) under subparagraph 2 (b) of Article 2 of the judgment of the court below. The court below rejected the above assertion by detailed statement. Although there are some evidences and witness 1 and non-indicted 2 (this investigation agency and the statement made at the court below) lawfully adopted and examined by the court below, they correspond to the defendant's on-site absence, the non-indicted 1's statement that "at the time, the victim saw the two cafeteria cafeteria, and the defendant dried the cab and dried the road at the time, and the defendant dried the road at his own seat, and the defendant did not appear on the 4th day after the 1st day after the 1st day of the judgment, and there is no error of law by misunderstanding the defendant's new statement from the new wall to the 1st day of the court below's 1st day of the defendant's statement or 4th day of the new statement.

B. Ex officio determination

A prosecutor prosecuted the facts charged in the instant case by applying only Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) and Article 337 of the Criminal Act (the term of imprisonment with prison labor or imprisonment with prison labor for not less than ten years) (10 years). After selecting a limited term of imprisonment, the lower court sentenced the Defendant to imprisonment with prison labor for a period of not less than 10 years and less than 10 years, which is the lower limit of the imprisonment with prison labor, within the scope of the term (the term of imprisonment with prison labor for not less than 20 years and not more than 25 years) pursuant to Articles 3, 2(2) and 2(1)4 of the Act on Special Cases concerning the Punishment of Specific Crimes (hereinafter “Specialized Act”), proviso to Article 42 of the Criminal Act, and sentenced the Defendant to repeated punishment (the term of imprisonment

However, it is difficult to accept the above measures of the court below for the following reasons.

Article 3 of the Special River Act enacted by Act No. 4295 of December 31, 1990 provides that "where a public prosecutor has again committed a specific violent crime within three years after having been sentenced to punishment for a specific violent crime, the punishment shall be aggravated by up to two times the maximum or short term of the punishment prescribed for such crime." This Article appears to be in order to strengthen the statutory punishment for repeated crimes of specific violent crimes, the system of the provisions is prescribed for certain elements, and the application requirements and effects are also prescribed differently from Article 35 of the Criminal Act. Article 35 of the Criminal Act provides that the punishment for a repeated crime shall be aggravated by up to two times the maximum or short term of the punishment prescribed for such crime, but Article 3 of the Special River Act provides that the punishment for a repeated crime shall be aggravated by up to six times the maximum or short term of the punishment prescribed for such crime shall be aggravated by Article 30 of the Special River Act, and it shall be deemed that the public prosecutor has no substantial influence on the defense of the defendant again within three years after the establishment of a new specific specific specific violent crime by the Criminal Act.

In addition, Article 5-5 of the Aggravated Punishment Act amended and enforced by Act No. 3280 on December 18, 1980 provides that "any person who was sentenced to punishment for a crime under Articles 337 and 339 of the Criminal Act or an attempt thereof and again commits such a crime within three years after the execution of the punishment is terminated or exempted shall be punished by death, imprisonment for life or imprisonment for not less than ten years." The crime of violation of Article 5-5 of the Aggravated Punishment Act and Article 337 of the Criminal Act constitutes a specific violent crime under Article 2(2) and (1)4 of the Aggravated Punishment Act, and thus, the elements of Article 3 of the Aggravated Punishment Act shall be satisfied at all times if the punishment for a crime under Article 337 of the Aggravated Punishment Act becomes more severe than the punishment for a crime under Article 5-5 of the Aggravated Punishment Act, and the punishment for a crime under Article 337 of the Aggravated Punishment twice again becomes more and more severe than the punishment for the crime under Article 307 of the Aggravated Punishment Act.

In this case, although the prosecutor stated Article 3 (2) of the Act on the Special Cases Concerning the unconstitutionality of the Act in the indictment or did not take the procedure of addition, modification, etc. of applicable provisions of the Act, the court below applied this ex officio by deeming it as a special provision on the aggravation of repeated crimes under the Criminal Act. Thus, this decision affected the conclusion of the judgment by misapprehending the legal principles on the interpretation and application of Article 3 of the Act on the Special Cases concerning the Interpretation and Application

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the remaining grounds for appeal of the defendant, and the following is again decided after pleading.

The summary of the facts charged and the evidence recognized by the court are as stated in the corresponding part of the judgment of the court below. Thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 337 of the Criminal Act.

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (the amount of damage is KRW 500,000 and the degree of injury is two weeks prior to the occurrence of the crime) (see, e.g., Article 55(1)3 of the Criminal Act; the result of the crime is relatively heavy; this case is taken into account when considering the fact that the defendant, together with the victim, is able to drink with the victim, and that the victim under the influence of alcohol alone after drinking together with the victim, appears to have brought about a crime by taking the desire

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

Judges Lee Kang-won (Presiding Judge) (Presiding Judge)