(a) Purport of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes;

(b) Whether the application of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes can be imposed without the procedure for modification of an indictment (affirmative)

A. The purpose of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is to punish habitual offenders as statutory penalty under paragraphs (1) through (4), even in cases where habituality is not recognized in the case of the same paragraph.

B. The difference between Article 5-4(1) and (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes requires that the former constitutes more than three times criminal records and repeated crimes, instead of taking the former requirements for habituality. In this case, since the criminal records of the defendant stated in the facts charged under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes meet the above-mentioned criminal records and repeated crimes as they are, the criminal records of the defendant stated in the facts charged under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes meet the above-mentioned criminal records and repeated crimes, the basic facts are identical, and even if Article 5-4(5) of the same Act is applied, there is no concern that the need to

A. Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes;

A. Supreme Court Decision 82Do1865, 82Du383 Decided October 12, 1982

Defendant Saryary and Appellants for Custody

Prosecutor

Attorney Jeon Jong-gu

Seoul High Court Decision 84No1123,84No197 delivered on June 15, 1984

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the prosecutor's grounds of appeal.

1. The summary of the facts charged in the case of this case is that the defendant and the respondent for the escape from the defendant's position (hereinafter only referred to as the "defendant") were sentenced to imprisonment with prison labor for larceny at the Busan District Court on November 15, 1973; six months; eight months; imprisonment with prison labor at the Busan District Court on September 20, 197; imprisonment with prison labor for larceny at the Busan District Court on July 4, 1975; imprisonment with prison labor for eight months; imprisonment with prison labor from the same court on March 23, 1979 to larceny; imprisonment with prison labor for one year; imprisonment with prison labor from the same court on March 23, 1979 to larceny; imprisonment with prison labor for two years and six months at the same court on March 27, 1980 to the execution of the sentence on September 16, 1982; imprisonment with prison labor for two years and six months on September 13:0, 1984 to the victim's new provisions of the Criminal Act to the victim No. 92.

However, according to the reasoning of the judgment below, the court below judged that the defendant is not habitually recognized and excluded from the application of Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and decided that the defendant is subject to simple larceny under Article 329 of the Criminal Act.

2. However, according to Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, where a person who has been sentenced not less than three times to imprisonment with prison labor for the crime under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act or the attempts thereof, or is punished as a repeated crime for committing these crimes again, he/she is also punished as a repeated crime. The purport of this provision is to punish as a statutory punishment under paragraphs (1) through (4) of the Act on the Aggravated Punishment, etc. of Specific Crimes even in cases where habituality is not recognized in the case of the same paragraph (see Supreme Court Decision 82Do1865, 82Do383, Oct. 12, 1982). Thus, even if a person who has been sentenced six times of imprisonment with prison labor for larceny and is not habitually punished as a repeated crime by committing the crime under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

In this case, it is clear that the prosecutor prosecuted the defendant as a habitual offender under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, the difference between Article 5-4 (1) and Article 5 (5) requires that the former falls under the criminal records of more than three times and repeated crimes instead of requirements for habituality. Thus, the criminal records of the defendant stated in the facts charged in this case meet the above Article 5 (5) as they are satisfied the requirements for criminal records and aggravation of repeated crimes. Thus, the basic facts are the same, and even if Article 5 (5) is applied, there is no concern about the substantial disadvantage to the defendant's defense. Thus, the court may apply Article 5 (5).

3. Ultimately, the judgment of the court below was erroneous in interpreting Article 5-4 (1) and (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and it is reasonable to discuss this point.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)