폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)등
The judgment below
The remainder, excluding the rejection of an application for compensation order, shall be reversed.
The defendant shall be sentenced to one year of imprisonment.
1. The following facts are acknowledged according to the progress records of the case.
A. The Defendant, at the Seoul Southern District Court, was sentenced to two years and six months of imprisonment on September 11, 2013, and the Defendant appealed on the grounds that the sentencing was unfair. On January 24, 2014, the appellate court accepted the Defendant’s unfair argument on sentencing, and reversed the lower judgment and sentenced the Defendant to one year and six months of imprisonment.
On March 31, 2014, the judgment subject to a retrial became final and conclusive due to the dismissal of a final appeal.
B. On September 24, 2015, the Constitutional Court rendered a decision of unconstitutionality on the part of Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; Act No. 12896, Dec. 30, 2014); “A person who carried a deadly weapon or other dangerous object and commits a crime under Articles 260(1) (Assault), 283(1) (Intimidation) and 366 of the Criminal Act.”
(c)
On April 10, 2017, the Defendant filed a request for the reexamination of this case. On April 26, 2017, this court rendered a decision to commence the reexamination of the original judgment on the grounds that: (a) there exist grounds for reexamination prescribed in Article 47(4) and (3) of the Constitutional Court Act for a crime of violation of the Act on Violence, Etc. (Assaults, etc.) and a violation of the Act on Violence, Etc. (Intimidation, etc.) among the crimes subject to a retrial; and (b) the crime subject to a reexamination and the remainder of the crimes subject to a retrial are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, (c) one sentence should be imposed pursuant to
2. The summary of the grounds for appeal (unfair sentencing) sentenced by the court below (two years and six months of imprisonment) is too unreasonable.
3. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
After the public prosecutor decides to commence a retrial, he/she shall name the crime of assaulting carrying dangerous articles among the facts charged in the instant case.