We reverse the judgment of the first instance court.

A defendant shall be punished by imprisonment for one year.

1. Summary of the grounds for appeal (the mental and physical weakness, misunderstanding of legal principles, and improper sentencing)

A. At the time of mental and physical disorder, the Defendant committed the instant crime under the condition of mental and physical loss or mental weakness due to severe depression, etc.

B. In light of the legal principles, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment, etc.”) applies to the Defendant’s crime of this case by misapprehending the legal principles, the provisions are as follows, and the punishment for repeated crimes is included as part of the constituent elements, and the aggravated punishment is separately prescribed. As such, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes should not apply overlapping Article 35 of the Criminal Act to a person who violates the same provision

However, the first instance court applied Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act to the defendant, and determined the punishment by aggravated aggravation of repeated crimes pursuant to Article 35 of the Criminal Act.

(5) If a person who has been sentenced not less than three times to imprisonment for a crime under any provision of Articles 329 through 331, 333 through 336, 340 and 362 of the Criminal Act, or the attempts thereof, again commits such crime, and is punished as a repeated offense, the punishment shall be aggravated as follows:

1. A person who commits a crime under any provision of Articles 329 through 331 of the Criminal Act (including an unclaimed crime) shall be punished by imprisonment with prison labor for not less than two years nor more than 20 years;

2. A person who commits a crime under any provision of Articles 33 through 336 and Article 340 (1) of the Criminal Act (including exemplary crimes) shall be punished by imprisonment with prison labor for life or for at least ten years;

3. Any person who commits a crime under Article 362 of the Criminal Act shall be punished by imprisonment with prison labor for not less than two years nor more than twenty years.

(c)

Sentencing 1 Deliberation Punishment (one year of imprisonment) is too unreasonable.

2. Determination:

A. According to the evidence duly adopted and examined by the first instance court of mental and physical disorder, it is recognized that the Defendant was suffering from the depression at the time of the instant case, but the background, process, and crime of the instant crime.