폭력행위등처벌에관한법률위반(공동공갈)등
The judgment below
The part against Defendant A is reversed, and this part of the case is decided by the Seoul Southern District Court.
1. The lower court affirmed the first instance judgment that convicted each of the above Defendants by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences”) with respect to the act of assaulting carrying dangerous articles among the facts charged against Defendant A, Article 260(1) of the Criminal Act, and Articles 3(1) and 2(1)1 of the former Punishment of Violences Act, and Article 3(1)1 of the former Punishment of Violences Act, Article 260(1) of the Criminal Act, and Article 31(1) of the Criminal Act, with respect to the act of assaulting carrying dangerous articles among the facts charged against Defendant A.
On September 24, 2015, the Constitutional Court rendered a decision of unconstitutionality as to “a person who commits a crime under Article 260(1) of the Criminal Act by carrying a deadly weapon or other dangerous articles with him/her” (see, e.g., Constitutional Court Decision 2014Hun-Ba154, Sept. 24, 2015), which was applied by the lower court on September 24, 2015, and thus, Article 47(3) of the former Punishment of Violences Act retroactively lost its effect pursuant to Article 47(3) of the Constitutional Court Act.
The judgment of the court below which found Defendant A guilty of each of the above facts charged is no longer maintained, since the case which was prosecuted by applying the pertinent provision of the Act in the case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality is not a crime.
Meanwhile, the first instance court maintained by the court below in relation to each of the above facts charged and the remaining convictions are concurrent crimes under the former part of Article 37 of the Criminal Act.
Inasmuch as a single sentence was rendered, the entire part of the judgment of the court below against Defendant A should be reversed (On the other hand, the judgment of the court of first instance against the above Defendant was erroneous in the procedure, such as the absence prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, which does not meet the requirements of the judgment, the court below after