The judgment below

The part of imprisonment with labor shall be reversed.

Defendant shall be punished by imprisonment for a term of one year and three months.

No. 1 of the seized evidence

1. The sentence imposed by the court below (one year and four months of imprisonment and fine of 300,00 won) on the summary of the grounds for appeal is too unreasonable.

2. Determination

A. Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016) concerning the ex officio determination of the sentence of imprisonment among the lower judgment, where a person who has been sentenced not less than three times to imprisonment for the crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or the attempted crime, is punished as a repeated offense, even if he/she again commits such crime, the crime under paragraphs (1) through (4) shall be punished.

Article 5-4 (5) of the current Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) amended differently from those prescribed in “where a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or the attempts thereof, is punished as a repeated offender for committing such crime, he/she shall be punished aggravatingly as follows:

"A person who commits a crime under any provision of Articles 329 through 331 of the Criminal Act (including an unclaimed crime)" and subparagraph 1 of the same paragraph shall be punished by imprisonment with prison labor for not less than two years but not more than twenty years.

"........"

As such, Article 5-4(5) of the Act provides that “Aggravated Punishment,” which was irrelevant to the former Act, is subdivided according to the classification of each subparagraph of the punishment to be imposed, and the phrase provides that “Aggravated Punishment,” which is not the same under the former Act, shall be interpreted as having been prescribed by the statutory penalty under each subparagraph of Article 5-4(5) of the Act, which leads to repeated aggravation of statutory punishment for the same reason when applying Article 35(2) which is the aggravated provision of the general provisions of the Criminal Act, which is the aggravated provision of repeated offense under the general provisions of the Criminal Act. Therefore, it is reasonable to interpret that special punishment under each subparagraph of Article 5-4(5) of the Act, which is intended to be aggravated as a repeated offense, is prescribed by the Ordinance of the Ministry of Justice.