Whether Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is a punishment provision for repeated larceny, violates the principle of clarity, the principle of excessive prohibition, and the principle of equality (negative)

Articles 11, 12(1), and 37(2) of the Constitution of the Republic of Korea; Articles 1(1), 35, 329, 330, 331, and 342 of the Criminal Act; Article 5-4(2) and (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Constitutional Court en banc Order 201Hun-Ba15, 90 Decided May 31, 2012 (Hun-Gong188, 1032)

Defendant

Defendant

Attorney Lee Dong-sung

Seoul Southern District Court Decision 2017No1668 decided November 9, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “instant provision”) provides that “Where a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331 of the Criminal Act, or the attempts thereof, once again commits such crime, and is punished as a repeated crime, he/she shall be punished by imprisonment with prison labor for not less than two years but not more than twenty years.”

In the legal provision of this case, the term "a case where a repeated crime is punished for committing these crimes" does not need to be the same crime as the previous crime, but it separates "crimes under Articles 329 through 331 of the Criminal Act" under Article 5-4 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, it means not all the crimes listed in Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, but the crimes of the same kind as the previous crime, i.e., crimes under Articles 329 through 331 of the Criminal Act, or attempts thereof. Accordingly, the legal provision of this case does not violate the principle of no punishment without the law and the principle of clarity

The legal provision of this case requires a substantial relationship between the preceding and the following crimes to be a thief of the same kind, and the punishment is not yet invalidated upon being sentenced to imprisonment at least three times with prison labor for the preceding crimes. The time at which the latter commits the crime ought to be within three years from the time when the execution of the last sentence for the crime in question is terminated or exempted. The act of the criminal meeting such requirements is highly likely to be subject to criticism, and there is sufficient need to defend society from such criminal, and to prevent recidivism. Accordingly, the legal provision of this case does not violate the principle of proportionality between responsibility and punishment.

Punishment of repeated crimes falling under the legal provisions of this case aggravated compared to general criminal offenders constitutes discrimination based on criminal policy consideration of crime prevention and social defense, considering the trends in the increase of repeated crimes.

Therefore, the legal provision of this case cannot be deemed to be in violation of the principle of clarity, the principle of excessive prohibition, and the principle of equality (see Constitutional Court en banc Order 2011Hun-Ba15, 90, May 31, 201). Therefore, the allegation that the legal provision of this case is unconstitutional is rejected.

2. According to Article 383 subparag. 4 of the Criminal Procedure Act, only the case on which death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been pronounced, an appeal may be filed on the ground that the judgment of the court below affected the conclusion of the judgment or that there is a significant reason to recognize the sentencing significantly unfair. Therefore, in the instant case where the court rendered a more minor sentence against the Defendant, the argument that only the fact-finding of the court below on the grounds of mental disorder or that the

3. The Defendant’s appeal is without merit and thus dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)