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The judgment below
The part, other than the rejection of the application for compensation, shall be reversed.
Defendant 3 years of imprisonment and fine of 300.
Reasons
Summary of Grounds for Appeal
Although the Defendant was indicted in violation of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the lower court erred by misapprehending the legal doctrine, thereby treating the Defendant as a violation of Article 5-4(1) of the same Act without changing any separate indictment.
The lower court’s imprisonment with labor for three years and fine of 300,000 won and discard) against the Defendant of unreasonable sentencing is too uneasible and unfair.
Judgment
The provisions of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be punished in cases where a person who has been sentenced not less than three times to imprisonment for the crimes under Articles 329 through 331, 333 through 336, 340, and 362 of the Criminal Act, or the attempts thereof, is punished as a repeated crime for committing such crimes again, even in cases where habituality is not recognized. However, Article 5-4 (1) of the same Act requires habitualness, while Article 5-4 (5) of the same Act requires that a person be punished in criminal records and repeated crimes, and therefore, applying Article 5-4 (1) of the same Act without any changes in the indictment is likely to pose a substantial disadvantage to the defendant's defense. Therefore, the punishment shall not be punished by applying Article 5-4 (5) of the same Act without any changes in the indictment, even though he/she was prosecuted under Article 329 (5) of the same Act.
(See Supreme Court Decision 2005Do6925 Decided November 25, 2005). In each of the instant cases, even though a prosecutor was indicted for violating Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the lower court comprehensively took charge of the violation of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes. Of the lower judgment, the lower court erred by misapprehending the legal doctrine on the above part, which affected the conclusion of the judgment, and sentenced the above part and the remaining crimes as concurrent crimes under the former part of Article 37 of the Criminal Act.