The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. The sentence of the court below (one year and two months of imprisonment) shall be excessively unreasonable.

2. Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes for Ex officio Determination provides, “Where a person who has been sentenced not less than three times to imprisonment due to a crime under Articles 329 through 331, 333 through 336, 340 and 362 of the Criminal Act, or an attempt thereof, commits again such a crime and is punished as a repeated offense, the person shall be punished as follows.” Article 5-4(5) of the same Act (hereinafter “instant legal provision”) provides, “If the person commits a crime under Articles 329 through 331 of the Criminal Act (including an attempted crime)”, the person is punished by imprisonment for not less than two years but not more than twenty years:

The legal provisions of this case aim at strengthening the statutory punishment on the thief who committed the crime repeatedly, and the system of the article provides certain elements of a crime, and the application requirements and effects are also provided differently from Article 35 of the Criminal Act.

In light of the legislative intent and form of the legal provision of this case and differences from Article 35 of the Criminal Act, the provision of this case should be interpreted as creating a new constituent element of punishment, which is heavier than the Criminal Act, in cases where a person who has been sentenced more than three times to imprisonment for committing a crime (including an attempted crime) under Articles 329 through 331 of the Criminal Act committed more than three times, separate from Article 35 of the Criminal Act.

Therefore, the punishment for a repeated crime under Article 35 of the Criminal Act should be determined within the scope of the heavier penalty for a repeated crime under Article 35 of the Criminal Act.

(See Supreme Court Decision 2019Do18947 Decided May 14, 2020). The lower court recognized the Defendant’s criminal record, which served as the reason for aggravation of repeated crime, but did not put a repeated crime in determining the applicable punishment against the Defendant. The lower court did not err by misapprehending the legal doctrine.