Whether it is possible to reduce attempted crimes under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person who habitually commits a crime under Articles 329 through 331 of the Criminal Act shall be punished by life imprisonment or imprisonment for not less than three years, and thus, a person who habitually commits a crime under Articles 329 through 331 of the Criminal Act determines an attempted larceny as a requirement for the composition of such crime and is sentenced to imprisonment with prison labor for life or for not less than three years. In such a case where an attempted crime itself becomes the element of a crime and the punishment on the crime of violation is statutory, an attempted crime under Article 25

Articles 25(2), 329, and 342 of the Criminal Act; Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes;

Defendant

Prosecutor and Defendant

Busan District Court (86 High Court Decision 665)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

85 days of detention prior to the pronouncement of the judgment below shall be included in the above sentence.

The gist of the grounds for appeal by the prosecutor is that, in light of the criminal records of the defendant and the law of the retailing of this case and the poor quality of the crime, the punishment of imprisonment of two years imposed by the court below against the defendant is unfair, and the summary of each of the grounds for appeal by the defendant and his defense counsel is that the sentence of the court below is too unreasonable because it is too unreasonable in view of the growth environment of the defendant, the family-based form in which the defendant was under the current situation, and the circumstances that reflect the mistake in this case after the crime of this case.

However, prior to the judgment of the court below on the grounds of appeal by the public prosecutor and his defense counsel, the court below ex officio examined the application of the law of the court below as to the attempted larceny of this case by applying the provisions of Articles 5-4(1) and 342 and 329 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes Act"), and decided the defendant's attempted larceny of this case to commit a crime under Article 25(2) of the Criminal Act on the grounds that the defendant is an attempted criminal after choosing a limited term of imprisonment during the prescribed term of imprisonment. Since Article 5-4(1) of the Special Crimes Act provides that any person who habitually commits a crime or attempted a crime under Articles 329 through 331 of the Criminal Act shall be punished by imprisonment for life or for not less than three years, and thus, it is evident that the court below has attempted a crime under Article 25(2) of the Criminal Act on the grounds that the defendant's attempted larceny of habitual larceny of this case has not been sentenced to imprisonment.

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the party members are again decided as follows after pleading.

Criminal facts and summary of evidence

The summary of the facts charged and the evidence admitted by a party member is the same as that of the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

The so-called "the judgment of the defendant" falls under Article 5-4 (1) of the Aggravated Punishment Act, Articles 342, 329 of the Criminal Act, and Article 329 of the same Act. Since the above crime is related to larceny upon termination of the execution of the sentence on September 16, 1985, and repeated crime, it is subject to aggravation of repeated crime within the limit of the proviso of Article 42 of the Criminal Act pursuant to Article 35 of the same Act. Since there are reasons to take into account the circumstances, such as: (a) the defendant reflects the mistake in depth after committing the crime in this case; (b) the defendant is punished by imprisonment for one year and six months within the term of punishment; and (c) the defendant shall be included in the above punishment within the period of punishment prior to the pronouncement of the judgment of the court below pursuant to Article 57 of the same Act.

It is so decided as per Disposition for the above reasons.

Judges Lee Im-soo (Presiding Judge)