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The defendant's appeal is dismissed.
Reasons
1. The decision of the court below on the gist of the grounds of appeal is too unreasonable.
2. Determination
A. The Defendant asserts that the Constitutional Court made a decision that Article 5-4(1) and (4) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) are in violation of the Constitution, and thus, the prosecutor should take into account the changes in indictment or the determination of sentencing.
However, the Constitutional Court's decision of unconstitutionality under Article 47 of the Constitutional Court Act is a principle that the decision of unconstitutionality has only effect on the law or the law provisions subject to it, and it does not have effect on other law or law provisions.
(See Supreme Court Decision 2009Do9576 Decided April 14, 2011 (see Supreme Court Decision 2019Do9576, Feb. 26, 2015). The Constitutional Court rendered a decision that “The part concerning “acquisition” under Article 329 of the Criminal Act among Article 5-4(1) of the Specific Crimes Aggravated Punishment Act (amended by Act No. 10210, Mar. 31, 2010) and Article 362(1) of the Criminal Act among Article 363(4) of the Criminal Act shall not affect the decision of unconstitutionality as to Article 5-4(6) of the Specific Crimes A (amended by Act No. 10210, Mar. 31, 2010).”
[See Supreme Court Decision 2015Do2602, 2015Do40, May 14, 2015] Meanwhile, the lower court rejected the Defendant’s assertion on the following grounds for sentencing, on the grounds that the Defendant applied Article 5-4(6) and (1) of the Specific Crimes Aggravated Punishment Act and Article 329 of the Criminal Act to the crime of violation of the Specific Crimes Aggravated Punishment Act. As such, the lower court did not err by compelling the prosecutor to modify the indictment in accordance with the above unconstitutional decision, nor by reducing the Defendant’s punishment.
B. The defendant habitually steals another's property five times, and the defendant.