특정범죄가중처벌등에관한법률위반(절도)
2015Do1823 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny)
A
Defendant 1
Attorneys Y (Korean National Assembly)
Seoul Northern District Court Decision 2014No1495 Decided January 23, 2015
March 20, 2015
The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.
Judgment ex officio is made.
The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act to the facts charged in the instant case.
However, on February 26, 2015, the Constitutional Court rendered a decision of unconstitutionality as to the part concerning Article 329 of the Criminal Act among Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes applied by the lower court (see, e.g., Constitutional Court Decision 2014HunGa16, Feb. 26, 2015). Accordingly, the aforementioned provision of the Act became retroactively null and void pursuant to Article 47(3) of the Constitutional Court Act. Meanwhile, in a case where the penal Act or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the case against the Defendant who was indicted by applying the relevant provision of the Act constitutes a crime not committed (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007).
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.
Justices Kim Jae-young
Justices Lee In-bok
Justices Kim In-bok, Counsel for the defendant
Justices Go Young-young