The lower court convicted the charged facts of this case by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act.

However, the Constitutional Court rendered a decision on February 26, 2015 that "the part concerning Article 329 of the Criminal Act (amended by Act No. 10210, Mar. 31, 2010) in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) is unconstitutional." Accordingly, the above provision of the Act retroactively loses its effect pursuant to Article 47 (3) of the Constitutional Court Act.

In such a case, the defendant's case indicted by applying the pertinent provision which lost its effect constitutes a crime (see, e.g., Supreme Court Decision 2004Do9037, Apr. 15, 2005). Ultimately, the judgment below cannot be maintained as it is. The ground of appeal assigning this error is with merit. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant