(영문) 대법원 2020.2.27.선고 2019도18891 판결

The purpose of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes Aggravated Punishment Act") is to punish a repeated crime under the same subparagraph on three or more occasions among the crimes provided for in each subparagraph of the same paragraph, and to punish a repeated crime as a statutory penalty provided for in the same subparagraph in cases where a repeated crime is committed by again committing a crime under the same subparagraph. (See Supreme Court Decisions 89Do2226, 89Do198, Jan. 23, 1990; 2010Do8, Mar. 25, 2010; hereinafter referred to as "where a repeated crime is punished for committing such crimes" in Article 5-4(5)1 of the Specific Crimes Aggravated Punishment Act, and "the same crime" is not the same as the previous crime, but the crime is not the same as the crime under Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, i.e., all the crimes listed in Articles 31 through 28 through 3131.

The lower court: (a) was sentenced to imprisonment with prison labor for two years and six months from May 27, 2009 with prison labor for robbery, etc.; (b) six months from March 23, 2012; (c) April 3, 2013; and (d) five years from imprisonment with prison labor for special robbery and for special robbery; and (b) November 11, 2017; and (c) completed the execution of the final sentence; and (d) again, on June 3, 2019 and June 6, 2019.

11. On June 7, 2019, each of the special larceny of this case recognized the fact that the Defendant committed an attempted special larceny of this case, and applying Article 5-4(5)1 of the Specific Crimes Aggravated Punishment Act, Articles 331(1) and 330 of the Criminal Act, and Articles 5-4(5)1 of the Specific Crimes Aggravated Punishment Act, Articles 342, 331(1), and 330 of the Criminal Act to the Defendant.

However, since it is apparent that the crime of special robbery or attempted special robbery committed by the defendant who was sentenced on April 3, 2013 does not correspond to "a crime under Articles 329 through 331 of the Criminal Act, or an attempt thereof" under Article 5-4 (5) 1 of the Specific Crimes Aggravated Punishment Act, the judgment alone does not constitute "a person who has been sentenced to imprisonment not less than three times for a crime under Article 5-4 (5) 1 of the Specific Crimes Aggravated Punishment Act". Even if another criminal record confirmed by records is examined, the defendant cannot be deemed to have been sentenced to imprisonment for a crime under Articles 329 through 331 of the Criminal Act or an attempted crime under Article 329 through 331 of the Criminal Act. Accordingly, the defendant does not constitute "a person who has been sentenced more than three times to imprisonment for a crime under Article 5-4 (5) 1 of the Specific Crimes Aggravated Punishment Act".

Nevertheless, the lower court applied Article 5-4(5)1 of the Specific Crimes Aggravated Punishment Act to the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of “persons who were sentenced to imprisonment above the tariff classification prescribed in Article 5-4(5)1 of the Specific Crimes Aggravated Punishment Act” and thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the grounds of appeal, 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.