Defendant

Prosecutor

Madhee (prosecution) and leap-line (public trial)

Attorney Kim Sung-sung (Korean)

Daejeon District Court Decision 2019Gohap2231 Decided August 13, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One cuter (No. 1) seized shall be confiscated.

1. Summary of grounds for appeal: misunderstanding of legal principles and unreasonable sentencing

A. Legal principles

In the event that a crime falling under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) is committed, a repeated crime under Article 35 (2) of the Criminal Act shall be aggravated. On the contrary, the judgment of the court below which did not aggravation a repeated crime under Article 35 (2) of the Criminal Act with respect to the Defendant’s violation of the Aggravated Punishment, etc. of Specific Crimes Act, is erroneous in the misapprehension of legal principles.

B. Unreasonable sentencing

The sentence of the lower court (ten months of imprisonment) is too unhued and unreasonable.

2. Judgment on misapprehension of legal principles

Article 5-4 (5) of the former Specific Crimes Aggravated Punishment Act provides that “If a person who has been sentenced not less than three times to imprisonment with prison labor due to the crimes under Articles 329 through 331, 336 and 362 of the Criminal Act or the attempts thereof again commits such crimes, he/she shall be punished by the same punishment as that under paragraphs 1 through 4 of the Criminal Act.” However, Article 5-4 of the former Specific Crimes Aggravated Punishment Act was amended by Act No. 13717 of Jan. 6, 2016, who again commits the crimes under Articles 329 through 31, 336 through 36, and 340 and 362 of the Criminal Act, and is punished by imprisonment with prison labor for not less than three years, then the person who again commits such crimes shall be punished by imprisonment with prison labor for not less than three years pursuant to Articles 329 through 31 of the Criminal Act.”

In addition, Article 5-4(5) of the former Specific Crimes Aggravated Punishment Act is a separate constituent element to strictly hold a person with certain criminal records, such as larceny, liable for the act of disregarding the warning that the person is subject to aggravated punishment if he/she commits a crime corresponding to the same repeated crime. Thus, even if Article 35(2) of the Criminal Act applies to the aggravation of repeated crime, it cannot be deemed as an unfair double punishment for the same act (see Supreme Court Decision 2007Do4913, Aug. 23, 2007).

Therefore, in applying Article 5-4 (5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes, it is reasonable to view that a repeated crime under Article 35 of the Criminal Act should be added again to the prescribed statutory penalty. Therefore, in determining the punishment for a criminal defendant who is a heavy reason for repeated crime, the court below is erroneous in the misapprehension of legal principles as to the failure of a repeated crime under Article 35 (2) of the Criminal Act as to each of the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) of the defendant for the reasons stated in its holding, while recognizing the criminal record of the defendant who is a heavy reason

3. Conclusion

Therefore, the prosecutor's appeal on the misapprehension of the legal principles is with merit, so the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the prosecutor's allegation of unfair sentencing, and it is again decided as follows.

Criminal facts recognized by the trial court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 331(1) and 330 of the Criminal Act (the point of repeated crime) and Article 5-4(5)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 342, 331(1), and 330 of the Criminal Act (the point of attempted special larceny of repeated crime)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravated Punishment, etc. of Specific Crimes (Rape) provided for in Article 1-A of the Judgment of the court below with the largest offense and the most serious offense]

1. Statutory mitigation;

Articles 52(1) and 55(1)3 of the Criminal Act (Self-denunciation)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

On the following day after the defendant committed the crime of June 11, 2019, he voluntarily surrenders to investigation agencies by finding out the crime of this case, the fact that the defendant surrendersed to investigation agencies to commit the crime of this case, the fact that the amount of damage is relatively minor, and the fact that the living penalty has the nature of a crime committed while living in an economically difficult situation while living with daily labor, etc., under favorable circumstances, the defendant repeated the crime without being aware of it during the period of repeated crime due to the same crime, in light of the number and frequency of each crime of this case, it is not good to nature of the crime, damage from each crime of this case is not recovered, and the fact that there are a number of criminal records of this case, etc. It shall be determined by taking into account the age, character and behavior of the defendant, environment, motive, means and consequence of the crime of this case, the circumstances after the crime of this case, etc., and taking into account various kinds of sentencing conditions as shown in the records and trial process of this case.

Judges Song-sik (Presiding Judge)