Whether Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced by Act No. 13717, Jan. 6, 2016, created a new constituent element separate from Article 35 (Cumulative Offense) of the Criminal Act (affirmative), and whether a punishment to be imposed shall be determined again within the scope of the heavier penalty provided for in Article 35 of the Criminal Act (affirmative)

Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 35, 329, 330, 331, and 342 of the Criminal Act

Supreme Court Decision 2006Do6886 Decided December 8, 2006 (Gong2007Sang, 171) Supreme Court Decision 2019Do18947 Decided May 14, 2020 (Gong2020Ha, 1139)

Defendant

Defendant

Attorney Lee Sung-hoon

Non-indicted Person

Changwon District Court Decision 2020No748 decided June 12, 2020

The appeal is dismissed.

The grounds of appeal are examined.

Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”) amended and enforced by Act No. 13717, Jan. 6, 2016, provides that “where a person who has been sentenced not less than three times to imprisonment for the crime under Articles 329 through 331, 333 through 336, and 340 and 362 of the Criminal Act, or for the attempted crime, commits again, and is punished as a repeated crime, the person shall be punished as follows.” Article 5-4(5) of the same Act provides that “If the person commits a crime (including a criminal attempt) under Articles 329 through 3317 of the Criminal Act, he/she shall be punished for not less than two years, but not more than 20 years, and Article 35 of the Criminal Act provides that “The provision of this case shall be punished for a more than three-year period of imprisonment with prison labor in light of the legislative purport of the same case and its penal provision.”

After applying the legal provisions of this case to the facts charged of this case, the lower court sentenced again a repeated offender under Article 35 of the Criminal Act to the same punishment as that of the first instance court while emphasizing repeated crimes under Article 35 of the Criminal Act. Such judgment of the lower court is reasonable in accordance with the aforementioned legal doctrine, and there was no error in the lower

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing shall be allowed. In this case where a minor sentence has been imposed against the defendant, the argument that the punishment is too unreasonable shall not be a legitimate

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)