Defendant

Both parties

The United States of America, the annual composition of the Republic of Korea

Attorney Kim Young-chul (Korean National University)

Suwon District Court Decision 2019Dadan2688 Decided August 29, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Seized evidence subparagraph 9 shall be confiscated.

1. Summary of grounds for appeal;

A. Defendant

Sentencing Division (In original trial: Imprisonment with prison labor for two years, forfeiture (No. 9))

(b) Prosecutors;

1) misunderstanding of facts or misunderstanding of legal principles concerning confiscation

The judgment of the court below that did not sentence confiscation, even though the prosecutor had been used for each of the larceny crimes of this case, is improper in the determination of the court below.

2) Sentencing:

2. Ex officio determination

The grounds for appeal by the defendant and prosecutor shall be examined ex officio prior to judgment.

(a) Special provisions concerning aggravation of repeated crimes;

Article 8 of the Criminal Code provides that "the general provisions of this Act shall apply to such crimes as are provided by other Acts and subordinate statutes, except as provided otherwise by such Acts and subordinate statutes."

However, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that "where a person who has been sentenced not less than three times to imprisonment due to a crime under Articles 329 through 331, 333 through 336, and 340 and 362 of the Criminal Act or an attempt thereof commits again and is punished as a repeated crime by committing such crime, the person shall be punished aggravatingly as follows." Article 5-4(5)1 of the same Act provides that "If a person commits a crime under Articles 329 through 331 of the Criminal Act (including a criminal attempt), he/she shall be punished by imprisonment with prison labor for not less than two years but not more than twenty years."

Therefore, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes should be deemed as a special provision on aggravation of repeated crimes as prescribed by other statutes.

(b) Improperity of aggravated punishment for the same reason.

In light of Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016); the statutory penalty under each subparagraph of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016) is already determined to be aggravated as a repeated offense, applying the provision of Article 35 of the Criminal Act to the crime of violation of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes repeatedly results in the aggravation of the statutory penalty for the same reason.

C. Sub-committee: Non-application of Article 35 of the Criminal Act

As such, Article 35 of the Criminal Act does not apply to the crime of violation of Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes. Nevertheless, the lower court applied Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is a special provision on the Aggravated Punishment, etc. of Specific Crimes, to the Defendant’s violation of each of the instant provisions on the Aggravated Punishment, etc. of Specific Crimes, and applied again Article 35 of the Criminal Act, which is a provision on the Aggravated Punishment, etc. of Specific Crimes, which is a provision on

3. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principle

Article 48(1)1 of the Criminal Act provides that "goods provided for an act of crime" shall not be limited to goods used for the act of crime itself, and even if they are used for the act before the commencement of the act of crime or after the completion of the act of crime, they shall be included in goods provided under the above Article 48(1)1 of the Criminal Act so long as they are deemed to have contributed substantially to the execution of the act of crime (see Supreme Court Decision 2006Do4075 delivered on September 14, 2006). Meanwhile, since confiscation under Article 48(1) of the Criminal Act is voluntary, even if they meet the requirements of confiscation, it shall be subject to the discretion of the court (see Supreme Court Decision 200Do515 delivered on September 4, 2002).

In light of the above legal principles, even if the above seized articles are subject to confiscation, it is recognized that the court below did not sentence the forfeiture of articles Nos. 10, 11, 15, 15 through 21, 14, and 24 in light of the background and contents of each of the crimes of this case, the degree of the seizure and the necessity of daily life, etc., and therefore, it is difficult to conclude that the above seized articles are subject to discretionary forfeiture of articles under Article 48 (1) 1 of the Criminal Act. Thus, even if the above seized articles are subject to confiscation, in light of the following facts and contents of each of the crimes of this case, it is difficult to view that the court below erred in this part of this case since it did not deviate from the limits of the prosecutor's discretion.

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant and prosecutor's assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows after hearing.

The summary of the facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 330 (the point of larceny at Night) of the Criminal Act, Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act (the point of larceny), Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 342 and 329 (the point of attempted larceny) of the Criminal Act, Article 319 (1) of the Criminal Act (the point of intrusion upon residence, and the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 (Crime of Intrusion upon Residence)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

A person under ○○: Although there was a history of criminal punishment heavier than several times for the same larceny, each of the crimes of this case has been committed again during the period of repeated crime, and each of the crimes of this case is likely to steals property by intrusion upon residence at night or during the daytime, etc.

○ mitigated: The defendant recognizes all of the crimes and reflects it, and one proposal commits a crime, such as the attempted crime.

The punishment as ordered shall be determined by comprehensively taking account of the various sentencing conditions shown in the instant case, such as the age, character and conduct, environment, background of the crime, and circumstances after the crime.

Judge Oi-ho (Presiding Judge)