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

(b) Where a person is prosecuted for habitual crimes under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether such person can be punished by applying Article 5-4 (5) without the procedures for amending the indictment (affirmative

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

B. In the facts charged for habitual crimes under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, if the criminal records of the defendant identified as the grounds for the habitual nature meet the requirements for aggravation of criminal records and repeated crimes under Article 5-4(5), even if Article 5(5) is applied, there is no difference in the basic facts and there is no concern that there may be no substantial disadvantages to the defendant's defense. Thus, the court may decide to apply Article 5(5) to the defendant who is not required to go through the

(b) Article 298 of the Criminal Procedure Act;

Supreme Court Decision 84Do1767,84Do274 Decided October 10, 1984

Defendant and Appellant for Custody

Defendant-Appellant and Prosecutor-Appellant and Prosecutor

Attorney Jeon Young-young

Seoul High Court Decision 84No467,84No82 Decided May 4, 1984

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

The prosecutor's grounds of appeal are examined.

1. According to the records, the summary of the facts charged as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes among the defendant's instant case was sentenced to imprisonment with prison labor for two years for fraud, etc., and the defendant was sentenced to imprisonment with prison labor for a short term of six months and six months for special larceny at the Chuncheon District Court on September 25, 1973, and the same court on February 3, 1978, sentenced to imprisonment with prison labor for a term of one year and six months, and the defendant was sentenced to imprisonment for a term of three years for habitual larceny at the same court on September 28, 1979, and the execution of the sentence was completed again on March 22, 1983, the court below determined that the defendant was habitually sentenced to imprisonment with prison labor for two years for fraud, etc. and confirmed on March 22, 1983, and determined on September 29, 198 that the defendant's identity of the victim at the 10th local level of larceny was excluded.

2. However, the purport of the provision of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is that even if habituality is not recognized in cases falling under the same paragraph, punishment shall be imposed in accordance with the statutory punishment prescribed in paragraphs (1) through (4) of the same Article concerning habitual crimes even if punishment is not recognized for repeated crime by committing larceny after being sentenced three times to imprisonment with prison labor as the defendant and committing larceny again, it shall be punished within the scope of the statutory punishment prescribed in Article 5-4 (5) of the same Act under Article 5-4 (5) of the same Act. In this case, even though a prosecutor was indicted for habitual crimes prescribed in Article 5-4 (1) of the same Act, but the criminal power of the defendant alleged in the facts charged satisfies the above paragraph (5) as it satisfies the requirements of habituality and aggravation of repeated crimes, so there is no difference in the basic facts even if paragraph (5) is applied, and therefore, the court below's failure to take the amendment procedure can apply Article 5-4 of the Act to the above facts charged.

3. Therefore, the part of the judgment of the court below regarding larceny and protective custody cannot be reversed. Since the court below imposed a single punishment for concurrent crimes with the charge of forging public documents or uttering of forged public documents, the judgment below is reversed in its entirety and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Jin-young (Presiding Justice)