A. Whether Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is applied in a case where a person is punished as a repeated crime by committing larceny, even though the person is not recognized habitually (affirmative)

(b) Where a person is prosecuted for a habitual offender under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether the person can be punished by applying Article 5-4 (5) without 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 a habitual offender, even in cases where habituality is not recognized in cases falling under the same paragraph, according to the statutory punishment prescribed in paragraphs (1) through (4) of the same Article concerning the habitual offender. Thus, in cases where punishment for a repeated crime is imposed by committing larceny, three times of imprisonment with prison labor for larceny, and punishment for a repeated crime is not recognized, it shall be punished within the scope of the statutory punishment prescribed in

B. If the prosecutor prosecuted a habitual offender as prescribed in Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, but the criminal records of the defendant identified as the grounds for habitualness in the facts charged meet the above Article 5-4(5), then the basic facts are not different, and there is no concern about actual disadvantage in the defense of the defendant, even if Article 5-4(5) is applied. Thus, the court may decide to apply Article 5(5) to the defendant who is not required to go through the amendment procedure.

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

Supreme Court Decision 84Do1782 delivered on December 11, 1984, 84Do276 delivered on December 11, 1984

Defendant and Appellant for Custody

Prosecutor

Attorney Oralk-in

Seoul High Court Decision 84No3079,84No464 Decided January 31, 1985

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 facts charged of this case are as follows: (a) six months of imprisonment with prison labor for night intrusion larceny at the river branch of Suwon District Court on February 2, 1962; (b) six months of imprisonment with prison labor for larceny at the Seoul District Court on April 11, 196; (c) ten months of imprisonment with prison labor for the same crime at the Seoul District Court on May 29, 1969; (d) one year and six months of imprisonment with prison labor for the same crime at the Dong branch of the Seoul District Court on March 31, 1973; (c) one year and six months of imprisonment with prison labor for the same crime at the Seoul District Court on November 21, 1979; and (d) one year and three years of imprisonment with prison labor for habitual larceny at the Northern Branch of the Seoul District Court on November 21, 1979; and (d) the above last 3 years of imprisonment with prison labor at the victim 10th of Dongdaemun-gu on October 9, 1982.

(2) However, the purpose of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is to punish a habitual offender even in cases where habituality is not recognized in cases falling under the same paragraph, since punishment is imposed in accordance with the statutory punishment prescribed in paragraphs (1) through (4) of the same Article concerning habitual crimes. Thus, even if punishment is not recognized habitually in cases where punishment is imposed for larceny by committing a crime again after being sentenced to three imprisonment with prison labor as the defendant, it should be punished within the scope of the statutory punishment prescribed in Article 5-4 (5) of the above Act. In this case, the prosecutor indicted a habitual offender as prescribed in Article 5-4 (1) of the above Act, but the criminal power of the defendant stated in the facts charged as the grounds for habituality meets the above paragraph (5) of the above Article 5-4, and therefore, even if the above paragraph (5) is applied, there is no difference in basic facts and there is no concern that substantial harm to the defendant's defense. Thus, the court below's failure to amend the above Article 5-4 (5) of the above indictment.

(3) Therefore, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kang Jin-young (Presiding Justice)