Defendant

Defendant

Constitution of the Republic of Korea

Seoul Central District Court Decision 2005Ma2461 Delivered on June 8, 2005

The judgment of the court below is reversed.

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

The forty-six days of detention prior to sentencing of the original judgment shall be included in the above sentence.

The gist of the grounds for appeal by the defendant is that the punishment of imprisonment of two years sentenced by the court below is too unreasonable in light of the fact that the defendant has made a confession of all the crimes, is in depth, is against the depth, and is extremely living.

Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes 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 36, 340, and 362 of the Criminal Act or the attempts thereof again commits such crime, he/she shall be punished as a repeated crime." Meanwhile, where a punishment becomes invalidated by the Act on the Lapse of Punishment, etc. of Specific Crimes, he/she shall not be deemed to have been sentenced to imprisonment with prison labor as provided in Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes after the sentence becomes invalidated in the future (see, e.g., Supreme Court Decisions 30Do39, Oct. 22, 2002; 39Do3826, Mar. 23, 1982; 19Do3826, Sept. 1, 200, etc.).

According to the statement of criminal records about the defendant's return to the case, health care unit, and criminal records of the defendant, it can be recognized that the defendant was sentenced to imprisonment with prison labor for larceny at Seoul Southern Branch Court on March 30, 1983; one year of imprisonment at the Seoul District Court on May 3, 1985; one year of imprisonment with prison labor at the same court on September 10, 196; and one year of imprisonment with prison labor at the same court on November 8, 1988; however, the above punishment was invalidated for more than five years after the completion of the last execution of the punishment without suspension of qualification or a heavier punishment, but it is obvious that the above punishment became invalidated by Article 7 (1) 2 of the Act on the Lapse of Specific Crimes, while it is obvious that the above punishment became invalidated temporarily, the court below erred by misapprehending the legal principles on the aggravated punishment of the defendant under Article 5, etc. on the premise that the punishment was invalidated due to habitual larceny, etc., and thus, the court below erred in the judgment below.

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 judgment is delivered again after pleading as follows.

On April 25, 2002, the Defendant was released on February 28, 2003 and the parole period has elapsed on May 17, 2002, when he was sentenced to imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes at the Seoul District Court and executed the sentence in a female prison on February 28, 2003;

At around 00:30 on April 23, 2005, within the 5th 196-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si (hereinafter referred to as “AB-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and the victim Kim academic rights was found to be fastened and fastened on the right side of the victim.

The summary of the evidence of the defendant's criminal facts recognized by a member is the same as the corresponding column of the judgment of the court below. Thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 329 (Selection of Imprisonment with Labor)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

In light of the motive and background leading up to the instant crime, the circumstances before and after the instant crime, the degree of damage, and other various matters stipulated in Article 51 of the Criminal Act, which are the conditions for sentencing, such as the Defendant’s age, character, conduct, environment, etc., as stated in the records and pleadings, the sentence of the lower court that sentenced the Defendant two years to imprisonment is somewhat excessive, and thus, is somewhat excessive, it is determined that the sentence of the lower court that sentenced the Defendant is to be mitigated to be reduced to one year and six months.

The summary of the facts charged of this case against the defendant is that the defendant was punished by imprisonment not less than three times with prison labor due to larceny, etc., and the prosecutor was charged with larceny at the rate of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, on March 30, 1983, the defendant was punished by imprisonment not less than eight months with prison labor with prison labor for larceny, five years at the Seoul District Court on May 3, 1985, one year with prison labor at the same court on September 10, 1986, one year with prison labor at the same court on September 10, 1986, and one year with prison labor at the same court on November 8, 1988, and since there is no evidence to acknowledge that the defendant was sentenced to imprisonment not less than three times due to larceny, etc., the facts charged of this case constitutes the facts charged of this case and thus, the defendant is not guilty under the latter part of Article 325 of the Criminal Procedure Act or the facts charged.

Judges Kim Jong-sik (Presiding Judge)