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The judgment below
The part against the defendant shall be reversed.
A defendant shall be punished by imprisonment for a period of three years and ten months.
seizure.
Reasons
1. According to the progress records of the case, the following facts can be acknowledged.
The Defendant was sentenced to four years of imprisonment on December 27, 2012 in Seoul Southern District Court 2012 Gohap801
(Judgment of the court below)
Therefore, in the case of Seoul High Court 2013No185 (Separation), the appellate court reversed the part of the judgment of the court below on June 20, 2013 and sentenced the defendant to four years.
(Judgment of review).
Accordingly, the Defendant appealed, and the Supreme Court Decision 2013Do8123 Decided August 22, 2013, which was the final appeal, became final and conclusive as the final appeal was dismissed.
Since then, there was a decision of unconstitutionality by the Constitutional Court on the legal provisions applied to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes among the judgment subject to a retrial (the Constitutional Court 2013HunBa3), and this court rendered a decision of commencing a new trial on September 7, 2016 by the defendant on the ground of the above decision of unconstitutionality, and the decision of commencing a new
2. The main point of the grounds for appeal is that the sentence imposed by the court below (four years of imprisonment) is too unreasonable.
3. The prosecutor's ex officio determination is based on the facts charged with regard to "violation of the Act on the Aggravated Punishment, etc. of Specific Crimes" in the first instance prior to the retrial.
paragraphs (e) through (e)
After filing an application for amendment to a bill of amendment of the Act on the Aggravated Punishment, etc. of Specific Crimes and obtaining permission from the trial prior to the retrial, the name of the crime concerning "violation of the Act on the Aggravated Punishment, etc. of Specific Crimes" in the trial subsequent to the retrial shall be deemed as "Habitual larceny" and the applicable provisions of the Act shall be deemed as "Articles 332 and 329 of the Criminal Act"
Therefore, among the judgment below, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) cannot be maintained any more due to the change in the subject of the judgment.