[1] Whether the part concerning Article 330 of the Criminal Act among Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which habitually punishs a person who habitually commits a crime under Article 330 of the Criminal Act, may violate the basic principles of the Constitution or the principle of equality (affirmative)

[2] In a case where the first instance court and the lower court convicted the Defendant of the charges of habitual larceny by applying Article 5-4(1) and Article 330 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the case holding that the lower court erred by misapprehending the legal principles as to whether the part concerning Article 330 of the Criminal Act concerning the crime of habitual larceny is unconstitutional or not, or whether the procedure for modifying indictments to avoid the unconstitutional outcome following the application of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, without examining and

[1] Article 11 of the Constitution, Articles 330 and 332 of the Criminal Act, Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 11 of the Constitution, Articles 330 and 332 of the Criminal Act, Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 298 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2014Hun-Ga16, 19, and 23 en banc Decision 2015Do970 Decided March 26, 2015 (Hun-Ga221, 346) Decided February 26, 2015 (Hun-Ga21, 346)

Defendant

Defendant

Attorney Labor Industry Promotion

Changwon District Court Decision 2014No2985 decided February 12, 2015

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

The grounds of appeal are examined.

The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) and Article 330 of the Criminal Act to the facts charged in the instant case.

Of Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, the part on Article 330 of the Criminal Act (hereinafter “instant provision on the Aggravated Punishment of Specific Crimes”) provides that any person who habitually commits a crime under Article 330 of the Criminal Act shall be punished more severe than Article 332 and Article 330 of the Criminal Act (hereinafter “instant provision on the Aggravated Punishment of Specific Crimes”). However, the instant provision on the Aggravated Punishment of Specific Crimes (hereinafter “instant provision on the Aggravated Punishment of Specific Crimes”), however, without entirely adding a mark of special aggravated elements than the elements of the instant provision on the Aggravated Punishment of Specific Crimes (hereinafter “instant provision on the Aggravated Punishment of Specific Crimes”), is placed under the exclusive jurisdiction of the prosecutor’s indictment discretion without adding a mark of special aggravated elements, which leads to confusion in the application of the law, and further, the statutory penalty may be imposed by adding a type of life imprisonment with prison labor for a limited term of three years, as well as by prescribing the minimum sentence of imprisonment with prison labor, thereby violating the basic principles of equality or equality of punishment.

Therefore, in this case, prosecuted by applying the provisions of the Act on the Aggravated Punishment of Specific Crimes to the facts charged of the crime falling under the provisions of the Criminal Act, the court below should have deliberated and judged on whether the provisions of the Act on the Aggravated Punishment of Specific Crimes were unconstitutional or not, but without examining them, found the defendant guilty as the facts charged in violation of the provisions of the Aggravated Punishment of Specific Crimes Act, thereby affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-deok (Presiding Justice)