[1] Whether Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes established a new constituent element (affirmative), and whether the court may apply the above provision ex officio where the prosecutor stated the above provision in the indictment or did not add or modify the applicable provisions (negative)

[2] The case reversing the judgment of the court below that applied Article 35 of the Criminal Act to the special provisions for aggravation of repeated crimes and applied Article 35 of the Criminal Act, although the prosecutor did not add or change the above provisions to the applicable provisions of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 329 and 35 of the Criminal Act, and Article 5-4(6) of the same Act

[1] Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 35 of the Criminal Act / [2] Article 5-4(1) and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 35 of the

Defendant

Defendant

Attorney Lee Young-soo et al.

Busan District Court Decision 2005No3952 Decided February 3, 2006

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal ex officio prior to judgment.

According to the records, the prosecutor prosecuted the criminal facts stated in the judgment of the court of first instance by applying only Articles 5-4(1) and 329 and 35 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the court below acknowledged the above criminal facts after comprehensively taking account of the evidence presented by the court below, and applied Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act, Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 35 of the Criminal Act, and applied Article 35 of the Criminal Act

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

Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced by Act No. 7654 of Aug. 4, 2005, newly established Article 5-4 (6). This provision appears to be aimed at strengthening statutory punishment for habitual larceny crimes as the social protection law was repealed by the repealed Act promulgated and enforced by Act No. 7656 of Aug. 4, 2005, and its legislative purpose is to strengthen the statutory punishment for such habitual larceny crimes, etc., and the system of the provision is in the form prescribed for certain elements, and the applicable requirements and effects are different from Article 35 of the Criminal Act. In light of the above, if the crime provided for in Article 5-4 (1) or (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes was completely executed or exempted on more than two occasions, and if the crime provided for in Article 5-4 (1) or (2) is committed within three years after the completion or exemption of the enforcement thereof, it shall be deemed that the court newly established or revised Article 5 (4) of the former Criminal Act does not apply.

In this case, although the prosecutor stated the above Article 5-4(6) of the Act in the indictment or did not take procedures for the addition, modification, etc. of the applicable provisions of this Act, the court below considered this as a special provision for repeated crime aggravation under the Criminal Act, and applied the above provision along with Article 35 of the Criminal Act and the above provision, and applied the same as seen above, the court below aggravated repeated crime aggravation. Thus, this cannot be said to have affected the conclusion of the judgment by misapprehending the legal principles on the interpretation and application of Article 5

Therefore, without examining the grounds of appeal, the judgment of the court below is reversed ex officio, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)