The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. According to the progress records of the case, the following facts are acknowledged.

A. On November 18, 201, the Defendant appealed the lower judgment sentenced to two years of imprisonment with prison labor in the case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (i.e., thief) by Hongsung Branch of the Daejeon District Court 201 High Order 600, which was declared by the lower court. On February 2, 2012, the lower judgment was reversed and the Defendant was sentenced to one year and six months of imprisonment with prison labor.

B. On March 2, 2012, the Defendant filed a final appeal against this, and the judgment subject to a final judgment became final and conclusive upon withdrawal of the final appeal.

(c)

After that, on February 26, 2015, the Constitutional Court decided that the part of Article 329 of the Criminal Act in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes violates the Constitution (2014 Hun-Ga16, 19, 23 (Consolidation).

On October 27, 2015, the Defendant filed a petition for a new trial on the grounds of the foregoing unconstitutionality decision, and this court rendered a decision to commence a new trial on February 18, 2016, and the said decision to commence a new trial became final and conclusive as it is.

2. Summary of grounds for appeal;

A. At the time of committing the instant crime, the Defendant was in a state of mental and physical loss or mental weakness due to mental disorder, such as excessive behavioral disorder, etc.

B. The sentence of the lower court’s unfair sentencing (two years of imprisonment) is excessively unreasonable.

3. Determination

A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.

After the public prosecutor decided to commence a retrial, he/she applied for the amendment of the indictment with the name of the crime in the trial as "Habitual larceny", and the applicable provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes to "Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act" as "Articles 332 and 329 of the Criminal Act", and the court permitted the amendment of the indictment.

Therefore, the judgment of the court below can not be maintained as it is because the subject of the judgment is changed.

However, the defendant's mental and physical disorder has the reason for reversal.