Aggravation for repeated crimes against the violation of Article 5-5 of the Act on the Aggravated Punishment, etc.

Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Act”) provides for special provisions on repeated crimes, unlike the purport of Article 5-4(5) of the same Act, as the special provisions on repeated crimes, Article 337 of the Criminal Act provides for the aggravated punishment requirements of repeated offenders, such as robbery and injury, etc. Therefore, deeming that a repeated crime may be aggravated by Article 35 of the Criminal Act and Article 3 of the Special Act on the Punishment of Specific Crimes (hereinafter “Special Act on the Aggravated Punishment, etc.”) to be aggravated by the same criminal offense is unreasonable.

Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes, and

Defendant

Defendant

Incheon District Court Decision 91Gohap133 decided

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for seven years.

The number of detention days before the sentence of the original judgment shall be included in the above sentence.

The grounds for appeal shall be considered as follows.

First of all, in light of the evidence duly admitted by the court below, the criminal facts of the defendant alleged by the court below can be sufficiently recognized, and even after examining the records, no illegality can be found in the process of fact-finding of the court below. Thus, the above argument is without merit.

The following arguments regarding mental disorder are examined: (a) the amount of drinking alcohol at the time of committing the instant crime; (b) the background leading up to the instant crime; (c) the means and methods of committing the instant crime; (d) the Defendant’s act before and after committing the instant crime; and (e) the circumstances after committing the instant crime, etc., it is not recognized that the Defendant was drinking exclusively and was incapable of having lost or weak the ability to discern things at the time of committing the instant crime; and (c) thus,

Before the assertion of unfair sentencing, the court below examined ex officio prior to the assertion of unfair sentencing, and the court below applied Article 5-5 (Aggravated Punishment, etc. of Specific Crimes Act (hereinafter referred to as the "Aggravated Punishment, etc.") by applying the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Aggravated Punishment, etc.") to the punishment of robbery and the punishment of repeated crimes under Article 3 (Aggravated Punishment, etc. of Specific Crimes) on the ground that the defendant was released on July 25, 1990 and again committed the robbery in this case within three years after the expiration of the remaining term of punishment on January 1, 1991. On the grounds that the court below applied Article 3 (Aggravated Punishment, etc. of Offenders of Specific Crimes, such as Injury by Robbery, etc.) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Aggravated Punishment, etc. of Cumulative Punishment Act"),

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act and it is again decided as follows.

[Attachment Omission]

As stated in each corresponding column of the judgment of the court below.

1. Article applicable to criminal facts;

Article 5-5 of the Aggravated Punishment Act, and Article 337 of the Criminal Act.

2. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

3. Calculation of days of detention;

Article 57 of the Criminal Act

Judges Lee Young-han (Presiding Judge)