[1] The meaning of "a person sentenced to imprisonment" under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[2] The case holding that in a case where the defendant's three suspended sentence declared by the defendant loses the validity of the sentence and only one suspended sentence remains, it does not constitute "a person who has been sentenced to imprisonment not less than three times" under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] The meaning of Article 7(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 65 of the Criminal Act mean that "the sentence loses its effect" means that all the legal effect of the sentence becomes extinct in the future and any disadvantage caused by the sentence is resolved." Thus, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that "a person who has been sentenced not less than three times to imprisonment for the crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act or the attempts thereof, and is punished again as a repeated offender by committing these crimes, and it is reasonable to interpret "a person who has been sentenced to imprisonment" as meaning "a person who has been sentenced to imprisonment with prison labor" means a case where the term of suspension expires after the sentence becomes void by Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes. Therefore, where a person who has been sentenced to imprisonment with prison labor and such sentence becomes invalidated by Article 54 of the Criminal Act.

[2] The case holding that in a case where the defendant's three suspended sentence declared by the defendant loses the validity of the sentence after the lapse of the period of the suspended sentence, and only one suspended sentence is declared null and void by the law on the invalidation of the sentence, it does not constitute "a person who has been sentenced to imprisonment not less than three times" under Article 5-4 (5) of the Act on the Aggravated Punishment,

[1] Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 7(1), 8(1), and 65 of the Criminal Act / [2] Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 7(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 65 of the Criminal Act

[1] Supreme Court Decision 2002Do39 decided Oct. 22, 2002 (Gong2002Ha, 2918)

Defendant

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Attorney Training attitude

1. Defendant shall be punished by a fine of 5,000,000 won;

2. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

3. Number of days under detention before this judgment is sentenced shall be included in the period of detention in the workhouse.

1. At around 19:00 on December 18, 2008, the Defendant, at the convenience store managed by the victim 445-5, Seocho-gu Seoul Seocho-gu, Seocho-gu, Seoul, 2008, putting him in shopping bags that he had prepared to prepare for the 17 wings of sugars in total amounting to 50,000 won in the market price, which is the victim's possession on the display stand.

2. On December 19, 2008, the Defendant: (a) took advantage of the gaps in which employees’ surveillance was neglected at the convenience store of the above saw saw 19:14 on December 19, 2008; (b) stolen sugar 15,00 won in total at the market price of the victim’s possession on the display stand.

3. On December 23, 2008, the Defendant stolen 13,800 won in total at the victim’s market price on the display stand, which was located on the display stand, by taking advantage of the gaps in which employees’ surveillance was neglected at the above sawsaw convenience store around December 19,35.

1. Defendant's legal statement;

1. Statement of police seizure;

1. Relevant provisions of criminal facts: Article 329 of the Criminal Act;

2. Aggravation of concurrent crimes: former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act;

3. Attraction of a workhouse: Articles 70 and 69 (2) of the Criminal Act.

4. Calculation of days of pre-trial detention: Article 57 (2+20) of the Criminal Act.

5. Determination of sentence: Consideration of confession, details of crimes, degree of damage, degree of agreement, etc.;

1. Interpretation of "a person sentenced to imprisonment" under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "Specialized Act")

A. Article 5-4(5) of the Aggravated Punishment Act provides that a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331, and Articles 333 through 336, 340, and 362 of the Criminal Act, or the attempts thereof, shall also be punished as a repeated offense for committing again such crime.

The provision of the above special exception law was newly established at the National Assembly of Korea on December 18, 1980 by the amendment of the special exception law by Act No. 3280 at the National Assembly of Korea. In light of the fact that the current method of robbery, larceny, etc. was intelligence, interview, organized and habitually, and even being committed by killing human life, and that there was no social complaint by even taking account of the fact that the punishment provision was substantially strengthened and organized, it was enacted to punish the larceny in the case of larceny with the intention of strengthening the punishment provision for the larceny who is habitually and systematically strong, larceny, or repeated offender, and promoting social purification.

On the other hand, the National Assembly of Korea enacted the Act on the Lapse of Punishment, etc. (hereinafter "the Act") by Act No. 3281 at the National Assembly of Korea on the same day, and enacted the Act on the Lapse of Punishment, etc. (hereinafter "the Act") to ensure the normal return of criminal offenders to society and systemize the management of criminal records by automatically effective punishment after the lapse of a certain period.

According to the current Article 7 (1) of the Invalidation of Punishment Act, when a person who has been sentenced has completed or been exempted from the execution of a punishment without being sentenced to suspension of qualifications or more severe punishment (Article 1:3 years), five years (Article 7 (1) of the Invalidation of Punishment Act, five years (Article 2:3 years or less), or two years (Article 65 of the Punishment Act: fine: 3 years or less), or two years (Article 7 (1) of the same Act, the punishment is invalidated. In this case, the imprisonment and imprisonment without prison labor refer only to a sentence which can be terminated or exempted from the execution of punishment (see Supreme Court Decision 2005Do5756, May 11, 2007). In the case of a suspended sentence, when the grace period has elapsed without being invalidated or revoked, the sentence becomes invalidated, and Article 8 (1) of the Invalidation of Punishment Act provides that the person who has been sentenced to the suspension of the execution of punishment shall lose its effect in the list of the persons who have been declared to return to society.

B. In light of the legislative background and purport of the Act on the Aggravated Punishment and the Aggravated Punishment Act, the meaning of "the sentence shall lose its effect" in Article 7 (1) of the Aggravated Punishment Act and Article 65 of the Aggravated Punishment Act mean that all the legal effect of the sentence upon the sentence shall be extinguished in the future and the disadvantage caused by the sentence shall be resolved. Thus, in Article 5-4 (5) of the Aggravated Punishment Act, the crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act or the crime under Article 33 or more times of the Aggravated Punishment Act or the crime under Article 7 (1) of the Aggravated Punishment Act shall be interpreted to mean that "the person who has been sentenced to imprisonment" shall be punished as a repeated offender, not only if the fact that the person who has been sentenced to imprisonment exists, but also the legal effect on the sentence shall be interpreted to mean the case where the sentence still becomes effective.

C. Therefore, in a case where a person who was sentenced to imprisonment with prison labor is sentenced, the sentence shall not be deemed to fall under “a person who was sentenced to imprisonment” as provided in Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes after the sentence becomes invalidated (see Supreme Court Decision 2002Do39, Oct. 22, 2002) by Article 7 of the Aggravated Punishment Act (see Supreme Court Decision 2002Do39, Oct. 22, 2002).

2. Criminal records of the defendant;

A. The prosecutor prosecuted the defendant by applying Article 5-4(5) of the Aggravated Punishment Act. In full view of the prosecutor's statement, criminal records inquiry and investigation report (the confirmation of the criminal records and the date of release of the defendant, the attachment of the judgment) of the defendant, the defendant was sentenced to a suspended sentence of imprisonment with prison labor for six months at the Seoul Northern District Court on December 12, 1995,

B. As recognized earlier by the Defendant, the three suspended sentence decisions became invalid in accordance with Article 65 of the Criminal Act after the lapse of the grace period, and the one suspended sentence has yet to be declared valid in accordance with Article 65 of the Criminal Act. However, the five years have not yet passed since the end of the execution of the sentence, which is stipulated in Article 7(1)2 of the Criminal Procedure Act. As such, the Defendant does not constitute “a person who has been sentenced to imprisonment not less than three times” due to larceny stipulated in Article 5-4(5) of the Act on Special Cases, etc.

C. Furthermore, even if the prosecutor’s indictment against the Defendant as a habitual offender of the larceny as prescribed in Article 5-4(1) of the Aggravated Punishment Act includes the Defendant, it is difficult to readily conclude that the Defendant had habitualness of the larceny solely on the part of the Defendant’s criminal records, the law, the circumstances and attitudes of the instant crime, etc. recorded in the record, and there is insufficient evidence to acknowledge the habitualness.

3. If so, the defendant cannot apply Articles 5-4(5) and (1) and 329 of the Aggravated Punishment Act to the defendant. Thus, the defendant should not be acquitted. However, inasmuch as the above facts charged include the facts charged of simple larceny, and thus the defendant is found guilty of larceny within the scope of the same facts charged, this part of the facts charged shall not be acquitted separately from the disposition.

Judges Kim Jong-soo