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(영문) 대법원 2015.11.12. 선고 2015도14116 판결

가.폭행나.폭력행위등처벌에관한법률위반(집단·흉기등폭행)

Cases

2015Do14116 A. Violence

(b) Violation of the Punishment of Violences, etc. Act;

Defendant

A

Appellant

Defendant

Defense Counsel

Attorney J (Court-Appointed)

The judgment below

Seoul Central District Court Decision 2015No2552 Decided August 28, 2015

Imposition of Judgment

November 12, 2015

Text

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

Reasons

ex officio deemed.

The lower court convicted him by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 260(1) of the Criminal Act with regard to the act of assaulting by carrying dangerous articles among the facts charged of the instant case.

However, after the judgment of the court below was rendered, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who commits a crime under Articles 260 (1), 283 (1), and 366 of the Criminal Act by carrying a deadly weapon or other dangerous articles with him/her," and thereby rendered a decision of unconstitutionality on the part concerning "the person who commits a crime under Articles 260 (1), 283 (1), and 366 of the Punishment of Violences, etc. Act (the Constitutional Court Decision 2015, Sep. 24, 2015, 2014Hun-Ba154, 39, 2015, 2015Hun-Ga14, 2015, 18, 25Hun-Ga18, 200, and 25 (Joint) of the Act)" (Article 47 (3) of the Constitutional Court Act). Accordingly, the court below's judgment that found the above case to be retroactively null and void as a crime under this part of this Act.

Therefore, the part of the judgment of the court below regarding the violation of the Punishment of Violences, etc. Act shall be reversed. The court below held that this part and the remaining criminal facts constitute concurrent crimes under the former part of Article 37 of the Criminal Act, and rendered a single sentence. Accordingly, the judgment of the court below shall be reversed in its entirety. Therefore, without examining the grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination

Judges

Justices Kim Yong-deok

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il