[1] The purport of Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes

[2] In a case where a sentence becomes invalidated, whether a sentence of imprisonment with prison labor under Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes can be deemed as having been imposed (negative)

[3] The time of calculation of the period of invalidation of punishment for imprisonment with labor sentenced two or more times and the scope of invalidation

[1] The purpose of Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) is to repeat the crimes provided for in Article 5-4(1), (3), or (4) of the same Act on three or more occasions, among the crimes provided for in Article 5-4(1) and (4) of the same Act, and to punish a person who is a repeated offender, even in cases where habituality is not recognized, in cases where the crime is committed again and constitutes a repeated offense by committing a crime provided for in the same Article on three or more occasions.

[2] Article 7(1) of the Act on the Lapse of Punishment, Etc. provides that “When the period of punishment imposed under each subparagraph of the same paragraph has elapsed without being sentenced to suspension of qualification or more severe punishment, the punishment shall be invalidated if the period of punishment has elapsed since the date on which the execution of the punishment was completed or exempted, and, in the case of imprisonment with or without prison labor for not more than three years, the period of imprisonment with or without prison labor for not more than three years is five years. In a case where punishment becomes invalidated pursuant to the above provision, the legal effect by the sentence of punishment becomes extinguished in the future, and thus, the criminal record cannot be deemed as having been sentenced to imprisonment with prison labor under Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar.

[3] In light of the legislative intent of the Act on the Lapse of Punishment, etc., if a person who had been sentenced more than two times of imprisonment without being sentenced to suspension of qualification or more severe punishment and the period prescribed in the Act has elapsed since the end of the last sentence without being sentenced to suspension of qualification or more punishment, all of the punishment prior to the last

[1] Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010) / [2] Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010); Article 7(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [3] Article 7(1) of the Act on the Aggravated Punishment,

[1] Supreme Court Decision 95Do1137, 95Do54 decided Jul. 14, 1995 (Gong1995Ha, 2854), Supreme Court Decision 2005Do6925 decided Nov. 25, 2005 (Gong2006Sang, 86) / [2] Supreme Court Decision 2002Do39 decided Oct. 22, 2002 (Gong2002Ha, 2918) / [2/3] Supreme Court Decision 83Do1840, 83Do39 decided Sep. 13, 1983 (Gong1983, 1549)

Defendant

Defendant

Attorney Kim Jong-sung

Incheon District Court Decision 2009No3612 Decided December 16, 2009

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

1. Judgment on the grounds of appeal

In light of the records, the court below is justified in finding the defendant guilty of larceny in accordance with the evidence employed, and rejecting the defendant's defectiveness argument, and finding the defendant was in a state of mental disability at the time of the crime in this case.

With respect to this, the court below did not have any unlawful ground as alleged in the grounds of appeal, which affected the judgment below.

2. Ex officio determination

ex officio deemed.

The purpose of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is to punish a repeated crime among the crimes provided for in Article 5-4(1), (3) or (4) of the same Act three times or more, and to punish a repeated crime in cases where a repeated crime is not recognized for committing the same crime as the repeated crime, even in cases where a repeated crime is not recognized for committing the same crime (see Supreme Court Decision 95Do1137, 95Do54, Jul. 14, 1995, etc.).

Meanwhile, Article 7(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that when the period prescribed in each subparagraph of the same paragraph has elapsed since the execution of a sentence was completed or exempted without being sentenced to suspension of qualifications or more severe punishment, the term of imprisonment or imprisonment without prison labor for not more than three years is five years. In a case where a sentence is invalidated pursuant to the above provision, the legal effect of the sentence becomes extinguished in the future, and thus, it cannot be deemed that the previous conviction was sentenced to imprisonment under Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (see Supreme Court Decision 2002Do39, Oct. 22, 2002). In addition, in light of the legislative purport of the Act on the Lapse of Punishment, etc. of Specific Crimes, if a person who was sentenced not less than two times in the past has been sentenced to suspension of qualifications or more severe punishment without being sentenced to suspension of qualifications or more punishment, the term of the last sentence has expired without being sentenced to suspension of qualifications or more.

The judgment of the court of first instance, which the court below maintained as it is, shall be sentenced to imprisonment of 10 months with prison labor for larceny on November 24, 1992, 1 year of imprisonment with prison labor for an attempted robbery on January 12, 2007, and 4 months of imprisonment with prison labor for an attempted robbery on March 18, 2008, and on March 21, 2008, and again recognized the fact that the execution of the last sentence was completed and again committed an attempted larceny of this case on August 1, 2009, and the defendant is punished by Article 5-4 (5) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 342 and 331 (2) of the Criminal Act. However, since the crime of attempted robbery of the defendant constitutes imprisonment with prison labor on March 21, 2008, it cannot be deemed that the crime of attempted robbery of this case constitutes a person provided for in Article 5-4 (1) of the Act on the Aggravated Punishment, etc.

However, according to the records, the defendant, in addition to the above previous convictions, has been sentenced to five times of larceny, imprisonment with prison labor for habitual larceny, and imprisonment with prison labor for robbery on June 30, 200, and imprisonment with prison labor for robbery on November 24, 1992. On the other hand, with prison labor for ten months of imprisonment with prison labor sentenced to larceny on November 24, 1992, can be acknowledged that the execution of the sentence has been completed on July 15, 1993.

In light of the above legal principles as to the invalidation of punishment, since from July 15, 1993 when the execution of the sentence sentenced on November 24, 1992 was completed, until June 30, 200 when the period of five years under Article 7 (1) 2 of the Act on the Lapse of Punishment, etc. has passed since the defendant was sentenced to imprisonment due to robbery and bodily injury after the completion of the sentence, the punishment and the punishment previously sentenced on November 24, 1992 were all invalidated.

Therefore, even if examining the previous convictions other than those held in the first instance judgment maintained by the lower court, the Defendant cannot be deemed as having been sentenced to imprisonment not less than three times as prescribed in Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

The judgment of the court below is erroneous in the misapprehension of legal principles as to Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

3. Conclusion

Therefore, the remaining grounds of appeal on the defendant's unfair sentencing need not be examined further, are reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)