Whether it is possible to apply Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and apply Article 5-4(5) without any amendment procedure (affirmative)

Even in cases where habituality is not recognized in cases of habitual crimes as prescribed in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, if the criminal records of the defendant stated in the facts charged based on habituality meet the requirements for criminal records and aggravation of repeated crimes as prescribed in Article 5-4 (5) of the same Act, the court may apply the above paragraph (5) without undergoing the procedure for modification of indictment.

Article 5-4 of the Aggravated Punishment Act, Article 298 of the Criminal Procedure Act

Supreme Court Decision 84Do1767, 84Do274 Decided October 10, 1984

Applicant for Custody

Applicant for Custody

Daegu High Court Decision 85No9 delivered on April 18, 1985

The appeal is dismissed.

We examine the grounds of appeal by the requester for custody.

Even in cases where habituality is not recognized in the case of habitual crimes under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, if the criminal records of the accused stated in the facts charged on the grounds of habituality meet the criminal records and the requirements for aggravation of repeated crimes under Article 5-4 (5) of the same Act, the court may apply the above paragraph (5) without following the procedures for modification of indictment (see Supreme Court Decision 84Do1767, Oct. 10, 1984; 84Do274, Oct. 10, 1984). Since the crime committed in the original inquiry of the requester of the crime under Article 329 of the Criminal Act satisfies the requirements under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the statutory punishment is imprisonment with prison labor for life or for three years or more pursuant to Article 5-4 (1) 1 of the Social Protection Act, and then the requester for reduction of punishment falls under Article 5 (1) 7 of the Act, etc.

Therefore, the appeal without merit is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju