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The judgment of the court below is reversed.
Defendant shall be punished by imprisonment for a term of two years and ten months.
Reasons
1. The decision of the court below on the gist of the grounds for appeal (three years of imprisonment) is too unreasonable.
2. We examine ex officio prior to the judgment on the Defendant’s unfair argument of sentencing.
A. In a case where “a person who has been sentenced to imprisonment not less than three times for the crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or for the attempt thereof (hereinafter “person who has been sentenced to imprisonment for the same kind of crime at least three times”) again commits a crime under Articles 329 through 331 of the Criminal Act (including several crimes) during the period of the repeated crime, and intrudes upon a house as a means of the crime, the act of intrusion upon a house constitutes only one crime under Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016; hereinafter “Special Act”) and constitutes a separate crime of intrusion upon a house.
The reasons are as follows.
In light of the fact that even if a person having three times of imprisonment with prison labor commits a simple larceny, which does not require the composition of a repeated crime, and is punished under the same statutory punishment by treating his/her residence equally during the repeated period as the case of a person having three times of imprisonment with prison labor, in light of the fact that a person having three times of imprisonment with prison labor and a person having three times of imprisonment with prison labor and a person having three times of imprisonment with prison labor and a person having three times of imprisonment with prison labor commits a crime of larceny at night during the repeated period, if he/she intrudes upon his/her residence as a means of the crime of larceny, such act of intrusion is not absorption into the crime of larceny, but constitutes a separate crime of larceny, and thus, constitutes a substantive concurrent relationship with the crime of larceny.