(a) The purport of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes; or whether the court may apply Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and apply Article 5-4(5) without going through the amendment of indictment

A. The purport of the provision of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is that even in cases where habituality is not recognized in cases falling under the same Article, punishment shall be imposed according to the statutory penalty under Article 5-4(1) through (4)

B. If the facts of the previous conviction and the facts of the criminal facts stated in the indictment which were prosecuted for habitual offenders under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes fall under Article 5-4(5) of the same Act as they are, the court may apply and apply Article 5-4(

Article 5-4 of the Aggravated Punishment

A. Supreme Court Decision 82Do1865, 82Do383 Decided October 12, 1982, Supreme Court Decision 84Do1782, 84Do276 Decided December 11, 1984, Supreme Court Decision 84Do1767, 84Do274 Decided October 10, 1984

Defendant and Appellant for Custody

Prosecutor

Attorney Sick-soo

Seoul High Court Decision 88No2589,88No221 Decided December 27, 1988

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the prosecutor's grounds of appeal.

According to the reasoning of the judgment below, the court below reversed the judgment of the first instance that applied Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes"), on the ground that the defendant's prior convictions against the defendant and the defendant (hereinafter referred to as the "defendants") are reversed and applied a simple larceny, and that the sentence of protective custody against the defendant is also premised on the fact that the defendant's prior convictions are habitual larcenys even during the period of ten years, and one year and six months after the final criminal convictions. In this case, it is insufficient to deem that the defendant committed any contingent crime, and that the defendant committed any contingent crime during the course of the crime, and that the defendant cannot be recognized as habituals immediately with the means of the above prior convictions. The court below reversed the judgment of the first instance that applied Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes"), and reversed this part of the judgment on this ground.

However, the purport of the provision of Article 5-4 (5) of the Aggravated Punishment Act is that even if habituality is not recognized in cases falling under the same paragraph, punishment shall be imposed in accordance with the statutory punishment prescribed in Article 5-4 (1) through (4) of the Aggravated Punishment Act concerning habitual offenders (see, e.g., Supreme Court Decision 82Do1865, Oct. 12, 1982; 82Do1782, 84Do276, Dec. 11, 1984). Thus, the defendant was sentenced seven times to imprisonment with prison labor for larceny, and is punished as a repeated offender for committing the larceny again within three years after the completion of the last previous conviction execution, even if habituality is not recognized, and the defendant's indictment shall be punished within the scope of the statutory punishment prescribed in Article 5-4 (1) through (4) of the Aggravated Punishment Act, and the defendant's indictment is not required to be imposed in accordance with Article 5-4 (1) of the Aggravated Punishment Act.

Therefore, the court below's rejection of the defendant's request for protective custody on the grounds that the court below did not apply Article 5-4 (5) of the Aggravated Punishment Act to the facts charged of this case but applied simple larceny and that it did not fall under Article 5 (1) of the Aggravated Punishment Act is clear that it affected the conclusion of the judgment by erroneous interpretation of Article 5 (1) and (5) of the Aggravated Punishment Act. Thus, the appeal pointing this out is justified.

Therefore, the decision of the court below on the remaining grounds of appeal is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won