The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

1. Summary of the grounds for appeal: Two years of imprisonment;

2. Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced 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, 340 and 362 of the Criminal Act, or attempts thereof, again commits such crime, and is punished as a repeated offense, the person shall be punished aggravatingly as follows.” Article 5-4(5) of the same Act provides that “If a person who has been sentenced not less than three times to imprisonment for a crime under Articles 329 through 331 of the Criminal Act (including an attempted crime), he/she shall be punished by imprisonment for not less than two years but not more than twenty years.”

The legislative purpose of the instant provision is to strengthen the statutory punishment on thief who repeatedly commits a crime, and the system of the provision is the form prescribed by certain elements of a crime, and the application requirements and effects are also prescribed differently from Article 35 of the Criminal Act.

In light of the legislative purport and form of the provision of this case and differences between Article 35 of the Criminal Act, the provision of this case, separate from Article 35 of the Criminal Act, has created a new constituent element that “where a person who has been sentenced not less than three times to imprisonment for committing a crime (including an attempted crime) under Articles 329 through 331 of the Criminal Act and again commits the relevant crime during the period of the repeated crime, punishment heavier than the Criminal Act shall be imposed.” Thus, the punishment to be imposed shall be prescribed within the scope of the term of punishment imposed for a repeated crime under Article 35 of the Criminal Act.

(See Supreme Court Decision 2019Do18947 Decided May 14, 2020). Nevertheless, in determining the applicable sentence against the Defendant, the lower court determined the applicable sentence without being able to engage in repeated crime as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes among the criminal facts stated in the lower judgment.