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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
Reasons
1. Case progress
A. 1) The lower court found the Defendant guilty of all the charges of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, fraud, and attempted fraud, and sentenced the Defendant to a three-year imprisonment. 2) The Defendant appealed on the ground of unfair sentencing. On February 11, 2010, the lower court reversed the lower judgment on February 11, 201, and sentenced the Defendant two years and six months by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act. The said judgment became final and conclusive on February 19, 2010.
B. On February 26, 2015, the Constitutional Court rendered a decision that “the part concerning Article 329 of the Criminal Act, etc. in Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) is unconstitutional.” Accordingly, the said provision of the Act retroactively loses its effect pursuant to Article 47(3) of the Constitutional Court Act.
C. On April 8, 2015, the Defendant filed a motion for a new trial on the instant judgment subject to a new trial with the Daejeon District Court. On May 13, 2015, the Daejeon District Court rendered the instant judgment subject to a new trial on the grounds that there were grounds for a new trial under Article 47(4) of the Constitutional Court Act in the instant judgment subject to a new trial, and the said order for a new trial became final and conclusive as is.
2. The summary of the grounds for appeal is too unreasonable that the sentence imposed by the court below on the defendant (three years of imprisonment) is too unreasonable.
3. Ex officio prior to the judgment on the grounds for appeal by the defendant ex officio, the public prosecutor shall examine the name of the crime against the defendant in the trial of the defendant as "Habitual larceny" from "Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes", and Articles 5-4 (1) and 329, 352, 347 (1), and 37 of the Criminal Act.