Whether the application of Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes requires the aggravation of repeated crime under Article 35 of the Criminal Act (affirmative)

Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced by Act No. 7654 of Aug. 4, 2005, was repealed by the Act repealed by the Social Protection Act promulgated and enforced by Act No. 7656 of Aug. 4, 2005, to strengthen the statutory punishment for habitual larceny crimes, etc. In light of the following: (a) the system of the provisions is prescribed for certain elements; and (b) the applicable requirements and effects are different from Article 35 of the Criminal Act; (c) if a person commits a crime under Article 5-4 (1) or (2) two times or more as a crime under Article 5-4 (1) or (2) and again commits a crime under Article 5-4 (1) or (2) within three years after the completion of or exemption from the execution of the sentence, the punishment aggravated by up to two times the statutory punishment for the short term of the punishment specified for the crime, and thus, (d) a new provision should be newly established within the scope of the punishment prescribed by Article 6 (3).

Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 35 of the Criminal Act

Supreme Court Decision 2006Do1296 Delivered on April 28, 2006

Defendant

Defendant

Designation of Attorney Yang

Busan High Court Decision 2006No371 Decided September 20, 2006

The appeal is dismissed. 75 days out of detention days after the appeal shall be included in the original sentence.

The defendant and public defender's grounds of appeal are also examined.

1. Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced by Act No. 7654 of Aug. 4, 2005, is deemed to have been aimed at strengthening the statutory punishment for habitual larceny offenders, etc. as the legislative purport of the Act was repealed by the repealed Act promulgated and enforced by Act No. 7656 of Aug. 4, 2005. In light of the fact that the statutory system of the provision is the form prescribed for certain elements, and the applicable requirements and effect are different from Article 35 of the Criminal Act, it is reasonable to newly establish a new provision for a repeated crime under Article 5-4 (1) or (2) of the Criminal Act within three years after the execution of the sentence was completed or exempted after being sentenced two times or more as a crime under Article 5-4 (1) or (2) of the above Act, and thus, within three years after the completion or exemption of the sentence, punishment shall be imposed by the aggravated statutory punishment by up to twice the short term of the punishment prescribed.

In the same purport, the first instance judgment maintained by the court below applied Article 5-4 (6) of the above Act to the defendant's criminal act of this case, and then applied Article 35 of the Criminal Act again, the measure of aggravation of repeated crime is justifiable, and there is no violation of law such as misunderstanding of legal principles.

2. In this case where a sentence of imprisonment with labor for less than 10 years is imposed, the reason that the sentence of the court below is too unreasonable is not a legitimate ground for appeal under Article 383 subparag. 4 of the Criminal Procedure Act.

3. Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)