[1] Whether in the case of habitual larceny pursuant to Article 5-4 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes, the term "voluntary mitigation" under Article 25 (2) of the Criminal Act is permissible (negative)

[2] The case holding that the judgment of the court below which rendered a sentence after mitigation of punishment under Article 25 (2) of the Criminal Act is erroneous in the misapprehension of legal principles with respect to the crime of attempted larceny under Article 5-4 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) provides that “any person who habitually commits, or attempts to commit, a crime under Articles 329 through 331 of the Criminal Act shall be punished by imprisonment for life or imprisonment for not less than three years.” As such, habitual larceny under the above provision determines the act of habitual larceny itself as a constituent element of a crime, and is under the law of imprisonment for life or for not less than three years, and Article 5-2(6) of the Act on the Aggravated Punishment, etc. of Kidnapping and Inducement of Specific Crimes separately provides a separate penal provision for partial attempted larceny, while Article 5-4 of the same Act on the Aggravated Punishment, etc. of Habitual Theft is not a penal provision for the same type of punishment, but a penal provision for habitual larceny under the above provision, including the legislative purport of the above penal provision, and Article 5-4(1) of the same Act applies to attempted larceny under Article 25(1) of the Criminal Act.

[2] The case holding that the judgment of the court below which rendered a sentence was erroneous in the misapprehension of legal principles with respect to a crime of attempted habitual larceny under 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 rendered a mitigation of punishment under Article 25 (2) of the Criminal Act

[1] Article 25(2) of the Criminal Act; Articles 5-2(6) and 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010) / [2] Articles 25(2), 329, 332, and 342 of the Criminal Act; Article 55(1) of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010); Article 5-4(1) and (6) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)

[1] Supreme Court Decision 85Do2831 delivered on March 11, 1986 (Gong1986, 661)

Defendant

Prosecutor

Attorney Go Jin-jin

Daegu High Court Decision 2010No261 decided August 19, 2010

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “Special Crimes Act”) provides that “any person who habitually commits or attempts to commit 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.”

As such, habitual larceny under the above provision determines the attempted larceny itself as a constituent element of a crime and is under the law of imprisonment with prison labor for life or for not less than three years, and Article 5-2 (6) of the Act on the Aggravated Punishment of Kidnapping and Inducement separately provides a separate penal provision for attempted larceny with regard to partial attempted larceny, while Article 5-4 of the Aggravated Punishment Act provides a penal provision for the aforesaid penal provision, such as habitual larceny, not a penal provision for attempted larceny, in full view of the legislative purport of habitual larceny under the above provision, including the above penal provision for attempted larceny, it is reasonable to deem that mitigation of attempted larceny under Article 5-4 (1) of the Aggravated Punishment Act is not allowed in the case of habitual larceny to which this Article applies.

2. Nevertheless, the court below maintained the judgment of the court of first instance that determined the sentence after mitigation of punishment pursuant to Article 25(2) of the Criminal Act with respect to the crime of this case applied by the defendant under Article 5-4(1) of the Aggravated Punishment Act only for the reasons indicated in its holding. This judgment of the court below is erroneous in the misapprehension of legal principles as to Article 5-4(1) of the Aggravated Punishment Act and Article 25(2) of the Criminal Act, which affected the conclusion of the judgment. Accordingly, the ground of appeal pointing

3. 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 Min Il-young (Presiding Justice)