Whether an attempted mitigation of the act falling under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is made

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person who habitually commits, commits larceny, etc. or attempts to commit such crime shall be punished by imprisonment for life or imprisonment for not less than three years, and thus, an attempted crime itself is its constituent element. As such, an attempted crime under Article 25 (2) of the Criminal Act is not allowed to be mitigated.

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Defendant

Defendant

Suwon District Court (83 Gohap298, 83 Senior 35)

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for one year.

One hundred and fifty days of detention days prior to the declaration of the original judgment shall be included in the above sentence.

The appeal against custody case of the requester for custody is dismissed.

The first point of the grounds for appeal against the accused case, who is also the defendant and the respondent who is concurrently the defendant (hereinafter referred to as the "defendant"), is to have committed a crime under the state of mental disorder by rough and mental disorder at the time of the instant crime, but the court below erred in its judgment and found the defendant guilty, and the second point of the appeal and the grounds for appeal by the state appointed defense counsel are too unreasonable.

Therefore, according to the evidence duly examined and adopted by the court below, the circumstances of the crime of this case, the behavior and contents of the defendant at the time of the crime of this case, etc., the defendant's drinking is not allowed, and since the defendant is found to have been aware of the victim's intrusion at the place of the crime of this case, he is found to have been aware of the victim and had been aware of the victim, the degree of his personal injury does not reach the state of mental and physical disorder. Therefore, the above appeal on this point is without merit, but there is no reason to hold the above judgment on the grounds of appeal of unfair sentencing. However, Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that the person who habitually committed larceny, etc. or committed the crime of this case shall be punished by imprisonment with prison labor for life or for not less than 3 years, and thus, the attempted punishment under Article 25 (2) of the Criminal Act shall not be allowed. Accordingly, the court below acknowledged the defendant's attempted mitigation. Thus, the part of the judgment below is not erroneous in its judgment.

Therefore, without examining the grounds for appeal against the above unfair sentencing pursuant to Article 364(2) and (6) of the Criminal Procedure Act, the part of the judgment below regarding the defendant's case is reversed ex officio and it is again decided as follows.

The relationship between the facts acknowledged by the present court and the evidence of the accused case is the same as the time of the original adjudication, and thus, it shall be quoted in accordance with Article 369 of the same Act.

The so-called "the judgment of the defendant" falls under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 342 and 329 of the Criminal Act, and the defendant has a criminal record falling under a repeated crime as stated in the judgment of the court below. Thus, the defendant is subject to a repeated crime within the limit of the proviso of Article 42 of the Criminal Act pursuant to Article 35 of the Criminal Act, and there is a reason to take into account the circumstances such as the fact that the defendant is able to engage in repeated crime and the defendant is in a depth of his mistake, etc. under Article 53 and Article 55 (1) 3 of the Criminal Act. In this case, the defendant must be sentenced to imprisonment at least one year and six months within the scope of the prison term mitigated under Article 53 and Article 55 (1) 3 of the same Act, but only the defendant appealed, according to Article 368 of the Criminal Procedure Act, he shall be sentenced to one year

The grounds for appeal against custody cases of the defendant are that the court below's appeal is unfair to be put in seven years of protective custody. However, according to the evidence duly examined and adopted by the court below, the facts of the requirements for protective custody can be acknowledged in the original judgment, such as the risk of recidivism against the defendant. Thus, the appeal against custody cases of the defendant is dismissed in accordance with Article 42 of the Social Protection Act and Article 364

It is so decided as per Disposition for the above reasons.

Judges Lee Jae-soo (Presiding Judge)