The case holding that there was an error in the application of the proviso of Article 42 of the Criminal Act in aggravation of repeated crime;

Article 3(2)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act were applied to the Defendant, and thus, the Defendant was convicted of repeated crimes. In such a case, 30 years of imprisonment with prison labor for a long term, and thus, a punishment to be sentenced within the limit of 25 years according to the limitation under the proviso of Article 42 of the Criminal Act should be determined. The lower court did not apply the above proviso, thereby adversely affecting the judgment.

Article 42 of the Criminal Act

Defendant

Prosecutor

Busan District Court Decision 71 Masan219 delivered on October 1, 201

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The seventy days of detention days prior to the pronouncement of the judgment of the court below shall be included in the original sentence.

The gist of the grounds for appeal by the prosecutor is that the defendant is no previous criminal records and the punishment of the court below is too weak, so the court below, upon ex officio examination, applied Article 3 (2) 1 of the Punishment of Violences, etc. Act and Article 283 (1) of the Criminal Act with regard to intimidation, and applied Article 35 of the Criminal Act with regard to the defendant's previous criminal records, subject to the application of Article 35 of the Criminal Act. If a repeated crime is aggravated, the defendant will be sentenced to imprisonment for a maximum term of 30 years, but the imprisonment for a limited term of 25 years pursuant to the proviso of Article 42 of the Criminal Act does not exceed 25 years, so the court below determined a punishment to be sentenced within the maximum of 25 years pursuant to the limitation of the proviso of Article 42 of the Criminal Act. Since the court below did not apply the above proviso, but did not err in the misapprehension of the judgment of the court below because it was improper in this regard, and even if considering the issue of unreasonable sentencing, the defendant may not be subject to multiple punishment for the defendant.

Therefore, according to Article 364 (6) of the Criminal Procedure Act, the judgment of the court below shall be reversed and the members thereof shall be decided again.

The criminal facts and the trial of evidence against the defendant are the same as that of the court below in addition to the attitude of the defendant's statement in the trial of the court below in the evidence, and they are cited by Article 369 of the same Act.

In light of the law, the point of injury in the court below's judgment is that the punishment of assault, etc. is to be imposed under Article 2 (2) and (1) of the Punishment of Violences, etc. Act, Article 2 (2) and (1) of the Criminal Act, Article 350 of the Criminal Act, Article 2 (2) and (1) of the Punishment of Violences, etc. Act, Article 366 of the Criminal Act, Article 3 (2) and (1) of the Punishment of Violences, etc. Act, Article 283 (1) of the Criminal Act, Article 283 (1) of the Criminal Act, Article 283 of the Punishment of Violences, etc. Act, Article 22 (2) of the Punishment of Violences, etc. Act, Article 35 of the Criminal Act, and Article 257 (1) of the Punishment of Violences, etc. Act, and Article 35 of the same Act provides that if a repeated crime is to be punished under Article 35 of the same Act, it shall be punished under the proviso of the same Act, Article 37 of the same Act.

It is so decided as per Disposition.

Judges Sho-ho (Presiding Judge) Nowho-ho