[2] In lieu of deletion of Article 3(1) of the former Punishment of Violences, etc. Act, which provides for an aggravated element of Article 257(1) of the Criminal Act, it is a reflective measure taken from the fact that Article 3(1) of the former Punishment of Violences, etc. Act is more severe than that of the former Punishment of Violences, etc., and it constitutes “when a sentence is more severe than that of the former Punishment of Violences, etc. Act” under Article 1(2) of the Criminal Act (affirmative)

[3] Whether the second instance court’s sentence of imprisonment with prison labor for the suspension of execution in the first instance trial is against the principle of prohibition of disadvantageous alteration to the disadvantage of the defendant (affirmative)

1. Ex officio determination following the amendment of the Punishment of Violences, etc. Act;

A. In a final and conclusive judgment that recognized several concurrent crimes as guilty, where it is recognized that there are grounds for a retrial only for some of the crimes among them in an indivisible final and conclusive judgment that pronounced guilty, the decision to commence a retrial has to be made on the whole judgment. However, since the effect of a decision to commence a retrial is limited to the crime for which there is no grounds for retrial under the nature of the retrial system, which is an emergency remedy, the effect of a decision to commence a retrial is included in the text of a trial formally, the retrial court cannot reverse the judgment by re-examination and reversal of the judgment. However, since a new sentence should be imposed on that part, it is only possible to conduct a trial only to the extent necessary for sentencing since the new sentence should be imposed on that part. In addition, where Acts and subordinate statutes on criminal facts have been amended or abolished after a decision to commence a retrial, the relevant criminal facts shall be subject to the law at the time of the judgment to commence a new retrial, and the sentencing conditions shall be taken into account until the new judgment to determine a retrial, and if it is found guilty as a result of a review, the facts that there exists a ground for retrial shall be sentenced (see, etc.).

In addition, in cases where the evaluation of acts deemed a crime in the past according to the changes in the legal ideology that was the reason for the enactment of penal statutes has changed, and the evaluation thereof has been recognized and punished as a crime itself, or where the Acts and subordinate statutes have been amended or amended in light of reflective considerations that excessive punishment has been committed, the new law should be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

B. (1) According to the reasoning of the lower judgment, the lower court convicted the Nonindicted Party of the instant facts charged by applying Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”), Article 2(1)3 of the former Punishment of Violences, etc. Act, and Article 257(1) of the Criminal Act.

(2) Article 3(1) of the former Punishment of Violences Act provides that “Any person who commits a crime under any of the subparagraphs of Article 2(1) by force of an organization or a group, or by showing a power under the pretending to an organization or a group, or who commits a crime by carrying a deadly weapon or other dangerous articles with him/her, shall be punished in accordance with any of the subparagraphs of Article 2(1).” Article 2(1) of the same Act provides that “A person who habitually commits a crime under any of the following subparagraphs shall be punished in accordance with any of the following subparagraphs.” Article 2(1) of the same Act provides that “A person who habitually commits a crime shall be punished in accordance with Article 257(1) of the Criminal Act and Article 257(2) of the Criminal Act shall be punished by imprisonment for a limited term of not less than three years. However, the Act on the Punishment of Violences, etc. amended and enforced by Act No. 13718, Jan. 6, 2016; a person who commits a crime under Article 137(1) or 5-2) of the Criminal Act.

As can be seen, Article 257(1) of the Criminal Act, instead of deleting Article 3(1) of the former Punishment of Violences Act, which provides for the aggravated elements of Article 257(1) of the same Act, is newly established under Article 258-2(1) of the same Act, and Article 3(1) of the former Punishment of Violences Act provides that the statutory penalty is lower than that of the same Act, despite considering the general risk with which the above aggravated elements are marked, the previous penal provision that uniformly punishs an aggravated punishment for a limited term of not less than three years, even though the circumstances leading up to an individual crime, specific form of act, and the degree of infringement of rights, etc. are diverse, it shall be deemed that the previous penal provision that uniformly punishs an aggravated punishment for a limited term of not less than three years, and thus, it constitutes “when the punishment is heavier than that of the former Act by the amendment after a crime,” under Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decision 201

C. Therefore, among the facts charged in this case, the law at the time of new judgment is applied to the act of inflicting an injury on the victim by carrying a beer disease, which is a dangerous object, reflecting the amended law after the judgment subject to new judgment was rendered. Thus, pursuant to Article 1(2) of the Criminal Act, the punishment for aggravated acts under the former Punishment of Violences Act at the time of an act cannot be imposed pursuant to Article 258-2(1) of the Criminal Act, and the judgment of the court below that applied the provisions of the former Punishment of Violences Act,

2. Ex officio determination as to whether the principle of prohibition of disadvantageous alteration was violated

A. As to the suspension of the execution of imprisonment in the first instance trial, the sentence by the second instance on the reduction of the term of imprisonment is also in violation of the principle of prohibition of disadvantageous alteration (see Supreme Court Order 86Mo2, Mar. 25, 1986, etc.). Likewise, even though the suspension of the execution of imprisonment in a case subject to reexamination was sentenced in the case subject to reexamination, the sentence is more severe than the original judgment in the retrial case, and the suspension of the execution is contrary to the principle of prohibition of disadvantageous alteration in accordance with Article 439 of the Criminal Procedure Act.

B. According to the reasoning of the judgment of the court below, the court below declared that ① the defendant was sentenced to imprisonment with prison labor for one year and six months in each of the crimes of this case and three years in each of the crimes of this case, and the suspension of execution is expected to be invalidated after being sentenced to imprisonment with prison labor for two years as he committed the crime of injury, etc. ② However, due to the Constitutional Court's decision of unconstitutionality as to the provision on the basis of some of the crimes of this case, the decision of commencing a new trial was made, ③ the imprisonment with prison labor for one year and six months was the lowest sentence on the crime of violation of the Punishment of Violence Act (a collective, deadly weapons, etc.), which is not the object of a request for a new trial among the crimes of this case, and ④ the defendant was sentenced to imprisonment with prison labor for one year and six months, which is the lowest sentence of imprisonment with prison labor for the crime of violation of the Punishment of Violences Act (a collective, deadly weapons, etc.) which is not related to the decision of unconstitutionality.

C. However, in light of the legal principles as seen earlier, the sentence of imprisonment with prison labor, the principal sentence of which is minor compared to the original judgment that sentenced the suspension of the execution of imprisonment in a retrial case, is not permitted solely on the ground that the Defendant was sentenced to imprisonment with prison labor for another case after the judgment was rendered and the judgment becomes final and conclusive, and the suspension of the execution becomes invalidated.

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)