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Main Issues
In the case of habitual larceny under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether mitigation of attempted larceny under Article 25(2) of the Criminal Act is permitted (negative)
[Reference Provisions]
Article 25(2) of the Criminal Act and Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes
Reference Cases
Supreme Court Decision 2010Do11620 Decided November 25, 2010 (Gong2011Sang, 81)
Escopics
Defendant
upper and high-ranking persons
Prosecutor
Defense Counsel
Attorney Choi Jin-man
Judgment of the lower court
Daegu High Court Decision 2013No119 decided May 2, 2013
Text
The judgment below is reversed, and the case is remanded to the Daegu High Court.
Reasons
The grounds of appeal are examined.
“A person who habitually commits, or attempts to commit, a crime under Articles 329 through 331 of the Criminal Act shall be punished by imprisonment with prison labor for life or for not less than three years.” In the case of habitual larceny under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”), the mitigation of attempted punishment under Article 25(2) of the Criminal Act shall not be permitted (see Supreme Court Decision 2010Do1620, Nov. 25, 2010, etc.).
Nevertheless, the lower court, solely on the grounds stated in its reasoning, reduced the Defendant’s attempted punishment under Article 25(2) of the Criminal Act with respect to the instant crime subject to Article 5-4(1) of the Aggravated Punishment Act, and imposed a sentence within the scope of the applicable punishment. In so doing, the lower court erred by misapprehending the legal doctrine on Article 5-4(1) of the Aggravated Punishment Act and Article 25(2) of the Criminal Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing this out is
Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Kim Yong-deok (Presiding Justice)