The defendant's appeal is dismissed.

The penalty sentenced by the court below (one hundred months of imprisonment, and confiscation) is too unreasonable.

Judgment

Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) only Article 330 of the Criminal Act applicable to the instant case and the attempts thereof, where a person who has been sentenced not less than three times to imprisonment for a crime under Article 330 of the Criminal Act, or the attempts thereof, once again commits such crime, and is punished as a repeated offense, were punished by imprisonment for not less than two years but not more than twenty years.

As seen above, the crime of larceny under the Specific Crimes Aggravated Punishment Act requires that the act of larceny of at night buildings itself be the constituent elements of the crime and the punishment for two to twenty years is legally imposed thereon; Article 5-2(6) of the Specific Crimes Aggravated Punishment Act on the aggravated punishment of kidnapping and inducement separate penal provisions for attempted crimes; while Article 5-4 of the Specific Crimes Aggravated Punishment Act provides the same penal provisions as mentioned above, not the penal provisions for attempted crimes of the same type; and comprehensively taking into account the legislative purport of the above provision, it is reasonable to deem that mitigation of attempted punishment under Article 25(2) of the Criminal Act is not allowed in the case of a crime to which Article 5-4(5) of the Specific Crimes Aggravated Punishment Act applies.

(see, e.g., Supreme Court Decision 2010Do11620, Nov. 25, 2010). In light of the aforementioned legal doctrine, the crime of larceny at night was committed on the part of an attempted disability, and thus, the crime of larceny at night cannot be mitigated under Article 25(2) of the Criminal Act, and thus, a sentence of imprisonment for not less than one year ought to be imposed even if mitigation is to be mitigated.

Nevertheless, the lower court rendered an attempted mitigation of punishment under Article 25(2) of the Criminal Act with respect to the instant crime, and subsequently sentenced to a punishment for ten months after mitigation of punishment. Therefore, the lower court erred by misapprehending the legal doctrine on Article 5-4(5) of the Specific Crimes Aggravated Punishment Act and Article 25(2) of the Criminal Act.