Whether a repeated crime under Article 3 of the Act on Special Cases concerning the Punishment of Specific Crimes, etc. (affirmative) can be aggravated for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes(affirmative)

In the case of Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the aggravation of repeated crimes under Article 3 of the Act on Special Cases concerning the Punishment of Specific Crimes is to prevent the prosecutor's arbitrary prosecution convenience and to not cause imbalance in the choice of applicable sentences. In determining the elements of a crime, the legislators’ provision on aggravated punishment, which stipulates the requirements for repeated crimes as part of the elements of legislative discretion, shall be deemed as double punishment unless it is contrary to the Constitution. Therefore, it is justifiable to apply the aggravation of repeated crimes pursuant to Article 3 of the Act on Special Cases concerning the Punishment of Specific Crimes after choosing the limited imprisonment term pursuant to Article 5-5 of the Act on the Aggravated Punishment

[1] Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 3 of the Act on Special Cases concerning Punishment

Defendant

Defendant

Law Firm Dom Law Firm, Attorney Park Gyeong-Gyeong

Seoul District Court Decision 2002Gohap233 delivered on May 31, 2002

The defendant's appeal is dismissed.

One hundred days out of the detention days before an appeal is pronounced after filing an appeal shall be included in the penalty of the original judgment.

1. Summary of grounds for appeal;

A. Error of mistake

The victim of this case, as stated in the judgment of the court below, is the president of the cafeteria, not the president of the 'Woo-gu golf driving range' that the defendant worked as an employee, but only the president of the 'Woo-gu driving range' adjacent to the 'Woo-gu driving range', and the accomplice used the knife, which is a deadly weapon while kidnapping the victim, or although the defendant did not possess or use a deadly weapon, the court below recognized that the defendant committed robbery in collusion with his accomplice and sustained robbery. The judgment of the court below is erroneous by misapprehending

B. Unreasonable sentencing

When considering the various circumstances of this case, such as the fact that the defendant is in depth against the defendant, the sentence of the court below against the defendant is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of fact

Comprehensively taking account of the evidence duly examined and adopted by the court below, it is sufficient to recognize the fact that the defendant committed the crime under the circumstances as stated in the court below's decision by assaulting the victim, who was the owner of the "Seodong Golf Practice" who was employed by the defendant as an employee with the non-indicted 1 and 2, and who was the owner of the "Seodong Golf Practice", who was the main owner of the "cafeteria 1" adjacent to the practice place, and informing the other accomplices of the fact that the non-indicted 1 and 2 started, carrying the victim with a knife knife knife knife knife and forced assault and assault the victim, and forced him to commit the crime, so this part of the court below's appeal is without merit (However, the first head of the court below's judgment of the court below is without merit (However, the "the president of the "Seodong Driving Practice Practice" in the first head of the judgment below's crime paragraph 1 is a clerical error in the owner of the site of the driving range).

B. Determination on the assertion of unfair sentencing

According to the records of this case, although the victim did not want the punishment of the defendant, the defendant committed the crime of this case only at the time of the initial stage of the crime such as robbery, injury by robbery, and one year or more, and the defendant was usually aware of the victim's family relation, and the defendant committed the crime of this case closely with his accomplices by preparing to commit the crime of this case with an interview or response to the victim's home, etc. (the degree of participation in the act of violence and intimidation as compared to his accomplices is minor. However, if the defendant was aware of the crime of this case, it cannot be seen that the degree of participation in the crime of violence and intimidation itself is minor, but if the defendant knew of the victim and knew of the fact that he was home to the accomplice as telephone, it cannot be seen that the defendant's act of violence and intimidation is not committed directly in the first stage of the crime of robbery, and the defendant's participation in the crime of this case's family relation with the victim was committed in full, it cannot be viewed that the defendant's motive to commit the crime of this case's punishment and punishment are unreasonable.

C. Determination as to whether the application of the statutes on repeated crimes is appropriate

(1) Although the grounds for appeal of this case are not included, the defendant's defense counsel stated that the court below's excessive imposition of repeated crimes under Article 3 of the Act on Special Cases Concerning the Punishment, etc. of Specific Crimes (hereinafter referred to as the "Specialized Crimes Act") among the crimes of this case by the defendant, would result in repeated aggravated punishment by the same criminal conviction and illegal. Thus, this court's position is clarified.

(2) Article 5-5 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes Act") provides that a person who has been sentenced to punishment for a crime under Articles 337 and 339 of the Criminal Act or an attempt thereof, again commits such a crime within three years after the execution of the sentence is completed or exempted, shall be punished by death, imprisonment for life, or imprisonment for not less than ten years. According to Article 2(1)3, 4, and 2(2) of the Special Crimes Act, both the crime of robbery, bodily injury, robbery, or robbery and robbery are specific crimes under the Special Crimes Act. Article 3 of the Special Crimes Act provides that where a repeated crime is committed with respect to these specific violent crimes, the punishment shall be aggravated by up to twice the short term and the long term of the punishment.

The provision of Article 5-5 of the Act on the Aggravated Punishment, In the case of recidivism, such as robbery, injury, etc., itself is a special provision for a repeated crime, which provides that a repeated crime is subject to aggravated punishment requirements for a repeated crime such as robbery, injury, etc. As such, there is a view that it is reasonable to punish only within the scope of the severe term of punishment for a repeated crime under Article 337 or 339 of the Criminal Act (limited to the Act on the Punishment of Sexual Crimes and Protection of Victims, which are one of the requirements for aggravated punishment, and Article 5 (2) of the Act on the Aggravated Punishment, etc. of Sexual Crimes and Protection of Victims (hereinafter referred to as the "Special Robbery Act") as provided for in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

(3)However, such opinions cannot be accepted for the following reasons:

In other words, first of all, the crime of robbery under Article 37 of the Criminal Act requires more than 30 years to be sentenced to imprisonment for life or for a repeated crime under Article 35 of the Act, and the lower limit of the imprisonment shall be 14 years if a repeated crime under Article 3 of the Act is committed, but the punishment shall be 10 years if the lower limit of the imprisonment is punished under Article 5-5 of the Act, and the legislative intent of Article 5-5 of the Act on the Aggravated Punishment of Rape, such as robbery, is weak if the prosecution is not consistent with the applicable minimum limit of the punishment, and Article 39 of the Criminal Act provides that a prosecutor is punished by imprisonment for life or for more than 10 years if he/she is rape with the lower limit of the punishment for a repeated crime under Article 35 of the Act on the Aggravated Punishment of Rape, which is a special crime under Article 5-5 of the aforesaid Act, and thus, the punishment for an aggravated punishment of the crime under Article 97 of the Criminal Act shall be imposed.

3. Conclusion

Therefore, this court's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and 100 days out of the detention days prior to this judgment after filing an appeal in accordance with Article 57 of the Criminal Act shall be included in the sentence of the original judgment. It is so decided as per Disposition.

Judge Gu-Appellee (Presiding Judge) Lee Jin-chul