폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. Summary of grounds for appeal;
A. The Defendant, at the time of committing the instant crime, was in a state of mental disorder or mental disorder.
B. Since Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, which apply mutatis mutandis to the facts charged in this case by misapprehending the legal principles, lose its effect as a decision of unconstitutionality by the Constitutional Court, the defendant cannot be punished pursuant to the pertinent provisions.
C. Even if it is not an unreasonable sentencing decision, the punishment imposed by the court below on the defendant is too unreasonable.
2. Determination
A. An ex officio determination prosecutor filed an application for modification of an indictment with regard to the name of the crime (violation of the Punishment of Violences, etc. Act (collectively weapons, etc.) as "special intimidation", and the applicable provisions of Article 3 (1) and Article 2 (1) 1 of the Punishment of Violences, etc. Act (Article 284 of the Criminal Act) as "Article 284 of the Criminal Act", and the judgment of the court below is no longer maintained since the subject of the judgment was changed by the permission.
However, despite the above reasons for ex officio destruction, the defendant's argument about mental disorder is still subject to the judgment of this court, and the following is examined.
B. According to the records of the determination on the assertion of mental disorder, even though the defendant was deemed to have a drinking condition at the time of the crime of intimidation, the defendant did not have the ability to maintain right and wrong or make a decision of the right and wrong due to drinking, in light of the background, means and methods of the crime, and the circumstances after the crime.
There was no or weak state.
The defendant's mental disorder is without merit.
3. Thus, the court below's decision is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows.
The prosecutor shall make decisions on the constitutionality of the Constitutional Court.