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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
Reasons
1. According to the progress records of the case, the following facts are acknowledged.
A. On June 27, 2013, in the case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) by the Seoul Western District Court 2013 High Order 833, the Defendant was acquitted of the victim’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (i.e., thief) against the victim’s Z, AA, AB, and AC (Attachment 11, 18, 19, and 20). The Defendant was sentenced to imprisonment with prison labor for the remaining part of the facts charged by the Defendant on the grounds that Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010; Act No. 13717, Jan. 6, 2016; hereinafter “former Act”).
B. In this case, the court below's decision is reversed on August 22, 2013 on the ground of the prosecutor's amendment of the indictment in this case, 2013 No. 690, for which the prosecutor appealeds and continues to appeal against this, but the judgment of this court is reversed on the ground of the victim's violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) against the victim's Z, AA, AB, and AC (Attachment No. 11, 18, 19, 20). The judgment of not guilty as shown in the judgment of the court below (not guilty for the reasons), and the judgment where the defendant is sentenced to imprisonment with labor for the remaining part of the charges by applying Article 5-4 (1) of the Act, Article 329 of the Criminal Act, and the judgment became final and conclusive on the basis of the period of appeal and around that time.
(c)
In this case, on February 26, 2015, the Constitutional Court rendered a decision that the portion of Article 329 of the Criminal Act among Article 5-4 (1) of the former Act is unconstitutional.
This Court held that, on May 15, 2018, Article 47(4) of the Constitutional Court Act applicable to a judgment subject to a retrial becomes retroactively null and void, and thus, there exists a ground for retrial in the judgment subject to a retrial under Article 47(4) of the same Act.
As a result, the defendant's request for a retrial based on the above decision of unconstitutionality is accepted.