The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. The following facts can be acknowledged according to the progress of the case subject to a retrial.

A. On February 15, 2007, the Defendant was sentenced to the lower judgment against the Defendant for a crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) in accordance with Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) and Article 329 of the Criminal Act.

B. On July 5, 2007, the defendant appealed against the above judgment, and this court reversed the judgment of the court below in 2007No 325, which was the appellate trial, and sentenced the defendant to a judgment subject to a retrial of one year, and the above judgment became final and conclusive as it was due to the waiver of the right to appeal.

(c)

In this regard, on February 26, 2015, the Constitutional Court decided that Article 329 of the Criminal Act violates the Constitution among Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes violates the Constitution (2014 Hun-Ga 16, 19, 23 (Consolidation)), and the Defendant filed a petition for a retrial on the grounds of the above unconstitutional decision on March 8, 2017.

(d)

On March 28, 2017, this Court rendered a decision of commencing a new trial by accepting the defendant's claim by the defendant, and the decision of commencing the new trial became final and conclusive as it is.

2. The decision of the court below on the gist of the reasons for appeal (one year and six months of imprisonment) is too unreasonable.

3. Examination ex officio prior to the judgment on the grounds for ex officio appeal.

After the decision to commence a retrial, a prosecutor filed an application for the modification of an indictment with the content that the name of the crime in the indictment was changed to “Habitual larceny” under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 329 of the Criminal Act, “Article 332 and Article 329 of the Criminal Act”, and the court permitted this and changed to the subject matter of the trial, thereby making it impossible for the court below to maintain it as it is.

4. Accordingly, the judgment of the court below shall be reversed ex officio.