The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

Summary of Grounds for Appeal

A. Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person who repeats a repeated crime during the period of the repeated crime is subject to aggravated punishment even though he/she was sentenced to imprisonment more than three times due to larceny, etc., and thus, it is not allowed for the Defendant to engage in repeated crime

B. The lower court’s sentence of unreasonable sentencing (three years of imprisonment) is too unreasonable.

2. Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended by Act No. 13717, Jan. 6, 2016, provides that “If a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331, 333 through 336, and 340 and 362 of the Criminal Act, or for the attempts thereof, again commits such crime, and is punished as a repeated offense, the person shall be punished aggravatingly as follows; and subparagraph 1 of the same paragraph (hereinafter referred to as “the provisions of the Act of this case”) of the same Article (including an attempted crime) commits a crime under Articles 329 through 331 of the Criminal Act, he/she shall be punished by imprisonment for not less than two years but not more than twenty years:

The legal provisions of this case aim at strengthening the statutory punishment on the thief who committed the crime repeatedly, and the system of the article provides certain elements of a crime, and the application requirements and effects are also provided differently from Article 35 of the Criminal Act.

In light of the legislative intent and form of the legal provisions of this case and differences from Article 35 of the Criminal Act, separate from Article 35 of the Criminal Act, the provision of this case should be interpreted as creating a new constituent element of punishment, which is heavier than the Criminal Act, if a person who has been sentenced more than three times to imprisonment for committing a crime (including an attempted crime) under Articles 329 through 331 of the Criminal Act again commits the relevant crime during the period of repeated crime.

Supreme Court Decision 201Da1449 Decided May 14, 2020