Article 5-4 (5) of the Act on the Aggravated Punishment, etc.

The purport of the provision of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is that where a repeated crime is committed on three or more occasions by committing a crime provided for in the same Article among those provided for in Article 5-4 (1), (3) or (4) of the same Act, and again commits a crime provided for in the same Article, and where such repeated crime is deemed to constitute a repeated crime, it shall be deemed that a punishment shall be imposed as a statutory punishment provided for in the corresponding provision of paragraphs (1)

Article 5-4 (5) of the Aggravated Punishment Act

[Plaintiff-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-do et al., Counsel for plaintiff-appellee)

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Abnormal (National Assembly)

Seoul High Court Decision 95No479,95No21 delivered on April 28, 1995

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

ex officio deemed.

The purport of the provision of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes") is that where a repeated crime is committed on three or more occasions by repeatedly committing a crime provided for in paragraph (1), (3) or (4) of the same Act among the crimes provided for in paragraph (4) of the same Article, and again commits a crime provided for in the same paragraph, and thus constitutes a repeated crime, even in cases where habituality is not recognized, punishment shall be imposed as statutory penalty provided for in paragraphs (1) through (4) of the same Article (see Supreme Court Decision 89Do226, Jan. 23, 190; 89Do198, Jan. 26,

The court below acknowledged the fact that the defendant and the respondent for scambling (hereinafter referred to as the "defendants") were sentenced to one time to commit the crime of larceny at night, two times as the crime of larceny at night, and one time as the crime of larceny at night, and the crime of robbery at night as the crime of larceny at night, and the crime of robbery at hand as the last sentence was completed on November 10, 1994, and again committed the crime of special robbery in this case on November 10, 1994. The court below held that the defendant is punished pursuant to Article 5-4 (5) and (3) of the Act on Special Cases, Articles 342 and 334 (2) of the Criminal Act, but the defendant's above night intrusion and larceny at night and attempts thereof do not constitute the crime of Articles 33, 334, 336, and 340 (1) of the Criminal Act, and therefore, the defendant cannot be punished pursuant to Article 5-4 (3) of the Criminal Act.

Nevertheless, the court below committed an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles of the above provision that the court below punished the defendant as the above provision. Meanwhile, according to the reasoning of the court of first instance on protective custody case maintained by the court below, the protective custody of this case is sentenced pursuant to Article 5-4 (5) and (3) of the Act on Special Cases under the premise that the defendant committed a crime under Article 5-4 (1) of the Social Protection Act. Thus, the whole reversal of this case cannot be exempted.

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 on the bench.

Justices Ahn Yong-sik (Presiding Justice)