마약류관리에관한법률위반(향정),폭력행위등처벌에관한법률위반(집단·흉기등협박)
2015Do15812 The Act on the Control of Narcotics, Etc. (fence) and the punishment of violence, etc.
Violation of the Act (Intimidation by Group, Deadly Weapons, etc.)
A
Defendant
Attorney P (National Ship)
Busan District Court Decision 2015No2355 Decided September 17, 2015
December 10, 2015
The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.
Before determining the grounds of appeal, we examine it ex officio.
Of the facts charged in the instant case, the lower court found the Defendant guilty by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act with regard to intimidation to carry dangerous articles on or around May 27, 2015 (hereinafter “The Punishment of Violences Act”). However, on September 24, 2015, the Constitutional Court rendered a decision that “the part concerning a person who committed a crime under Article 283(1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3(1) of the Punishment of Violences Act (hereinafter “instant provision”) shall be unconstitutional.”
If so, the provision of this case is unconstitutional, pursuant to Article 47 (3) of the Constitutional Court Act.
Since the charge of intimidation to carry dangerous goods among the facts charged in the instant case prosecuted by retroactively losing its validity constitutes a crime (see, e.g., Supreme Court Decisions 2004Do9037, Apr. 15, 2005; 2014Do5433, Aug. 28, 2014). The judgment below convicting this part of the facts charged becomes unable to maintain it as it is. Accordingly, the part of the judgment of the court below that found the guilty of this part of the facts charged should be reversed. Accordingly, the part of the judgment of the court below against the Punishment of Violences Act should be reversed. Since the above crime and the remainder of the defendant should be sentenced to one punishment because they were in a concurrent crime relationship under the former part of Article 37 of the Criminal Act, the judgment of the court below should be reversed.
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.
The presiding judge shall keep the record of the Justice
Justices Kim Yong-deok
Chief Justice Park Jong-young
Justices Kim Jae-han