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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
The lower court found the Defendant guilty of all the facts charged of this case, and sentenced the Defendant to imprisonment with prison labor for a period of two years and confiscation within the scope of aggravation of repeated crime under Article 35 of the Criminal Act with respect to the whole facts charged of this case.
The judgment of the court below before remanding the case was appealed by both the defendant and the prosecutor, and the judgment prior to remanding the case was rendered by the court below for two years and the confiscation of the defendant, on the grounds that the aggravation of repeated crime under Article 35 of the Criminal Act is unjust for the crime of violation of Article 5-4 (5) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes among each of the facts charged in the instant case, causing repeated crime under Article 35 of the Criminal Act to be aggravated for the same reason. Therefore, the judgment of the court below is reversed ex officio and the judgment of the court below was rendered within the limited scope
A prosecutor filed an appeal against the judgment of the party before remanding the judgment (the defendant appealed the appeal). Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced by Act No. 13717 on January 6, 2016, should be interpreted as establishing a new constituent element that “where a person who has been sentenced more than three times to imprisonment committed a crime under Articles 329 through 331 of the Criminal Act (including a criminal who committed a crime) again during the period of repeated offense, he/she shall be punished as a statutory penalty heavier than the Criminal Act.” Thus, even though he/she had been sentenced to a repeated crime under Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes again within the scope of a repeated offender under Article 35 of the Criminal Act, he/she should have been sentenced to the punishment again within the scope of a repeated crime under Article 35 of the Criminal Act, he/she reversed the judgment
Summary of Grounds for Appeal
Defendant
The sentence of the lower court (two years of imprisonment, confiscation) is too unreasonable.
(b) a prosecutor;