폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
However, the period of three years from the date this judgment becomes final and conclusive.
1. The following facts are acknowledged according to the progress records of the case.
A. On March 28, 2013, the Defendant and the applicant for reexamination (hereinafter “Defendant”) were sentenced to imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (collectively, deadly weapons, etc.) in the Busan District Court Decision 572, 1130 (Joint) on March 28, 2013. On June 4, 2013, the lower court, which was the appellate court, reversed the judgment of the lower court in the Busan District Court Decision 2013 No. 1118, Jun. 12, 2013, which was sentenced to a suspended sentence of one year and six months, and became final and conclusive on June 12, 2013.
B. On September 24, 2015, the Constitutional Court rendered a decision that the part of Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014) regarding “a person who commits a crime under Articles 283(1)(Intimidation) and 366 of the Criminal Act by carrying a deadly weapon or other dangerous articles,” etc. in Article 3(1) of the former Punishment of Violences, etc. (amended by Act No. 12896, Dec. 30, 2014) is unconstitutional.
(c)
On November 26, 2015, the Defendant filed a motion for the instant retrial. On January 22, 2016, this Court rendered a decision to commence a retrial on the judgment subject to a retrial.
2. Summary of grounds for appeal;
A. At the time of each of the instant crimes, the Defendant was in a state of mental and physical weakness by drinking alcohol.
B. The sentence sentenced by the lower court to the Defendant (one year and six months of imprisonment) is too unreasonable.
3. Determination
A. In the case of a crime against the defendant at the trial after the commencement of a retrial, the prosecutor of the ex officio determination shall consider “violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)” as “special intimidation”; “Violation of the Punishment of Violences, etc. Act (damage of property, such as a group, deadly weapon, etc.)” as “damage to special property”; “Violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)” as “special injury”; “Article 3(1) and 2(1)1 of the Punishment of Violences, etc. Act; and “Article 283(1) of the Criminal Act” in the applicable law as “Article 284 and 283 of the Criminal Act”.