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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
Reasons
1. The summary of the grounds for appeal shows that the defendant had reached six times the same criminal records, and committed the crime of this case under the same criminal act during the period of repeated crime of the same kind, it is reasonable to see that the crime of this case is a crime of larceny, but the judgment of the court below that the crime of this case is not recognized habitually is erroneous in the misapprehension of legal principles as to habituality, which affected the conclusion of the judgment
2. We examine ex officio the grounds for appeal ex officio prior to the judgment.
According to the written indictment of this case, only the defendant stated that he was guilty of having been sentenced to imprisonment with prison labor due to larceny, etc. six times, and does not state that he habitually stolen, and the applicable provisions of this case also state that "Article 5-4 (5) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act".
In light of such circumstances, Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) clearly distinguishable from the case of habitual offenders under paragraphs (1) through (4) of the same Article in cases where the purpose of the provision is not recognized as habitual offender (see Supreme Court Decision 2005Do6925, Nov. 25, 2005). It is evident that the prosecutor indicted the Defendant for attempted larceny of this case at the rate under Article 5-4(5) of the Special Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”).
However, according to the records, the judgment of the court below was based on the premise that "the prosecutor shall be deemed to have been caused by the birth of the criminal defendant's larceny, and thus prosecuted by applying the Act on the Aggravated Punishment, etc. of Specific Crimes to the crime of larceny." However, the court below acquitted the criminal charge of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes) on the ground that