Violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, etc.);

Violation of the Punishment of Violences, etc. Act (Assaults such as groups, deadly weapons);

Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Rape)

1. As to the violation of the former Punishment of Violences, etc. Act (a group, deadly weapon, etc.)

A. Of the facts charged in the instant case, the lower court held that the Defendant was a deadly weapon and dangerous article.

Punishment of Violences, etc. Act on the Punishment of Violence, etc. for the part of assaulting C by carrying the victim C

The former Punishment of Violences Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter referred to as "former Punishment of Violences Act")

The accused shall be convicted by applying Articles 3(1) and 2(1)1 of this Act, Article 260(1) of the Criminal Act.

The court of first instance affirmed the judgment.

B. However, the Constitutional Court, after the judgment of the first instance was rendered, punish the former violence by the court below.

In Article 3(1) of the Act, " deadly weapons or other dangerous articles" are carried with them and Article 260(1) of the Criminal Act (Exposure)

(2) to the part concerning "a person who commits a crime under section 283(1) or 366(a)."

The Court of Justice rendered a decision of unconstitutionality and rendered a decision of unconstitutionality on September 24, 2015, 2014HunBa154,398 (Concurrence);

2015Hun-Ga3, 9, 21, 2015Hun-Ga14, 2015Hun-Ga18, 2015 Hun-Ga18, 20, 25 (Consolidation), thereby

The legal provision was retroactively invalidated in accordance with the provisions of Article 47(3) of the Constitutional Court Act.

(c)

In a case where the law or legal provision on punishment becomes retroactively null and void due to the decision of unconstitutionality.

Defendant case prosecuted by applying the applicable legal provisions of this chapter constitutes a crime and constitutes a law

Seoul High Court Decision 91Do2825 delivered on May 8, 1992 and Supreme Court Decision 2005Do8317 delivered on June 28, 2007

C) The judgment of the court of first instance that found the Defendant guilty of this part of the facts charged is no longer consistent with this Opinion.

It has become impossible to maintain the award.

2. As to the violation of the former Punishment of Violences Act (a group, a deadly weapon, etc.)

(a) Committing a crime in the past according to the change of the legal ideology which served as the reason for the enactment of penal statutes;

The evaluation of this case has changed and recognized it as a crime and the punishment itself has been unfair; or

Article 1 of the Criminal Code is amended or amended in the reflective consideration that excessive punishment has been imposed.

Pursuant to paragraph (2), the new law shall be applied (Supreme Court Decision 2009Do12930 Decided March 11, 2010, Supreme Court Decision 2009Do12930 Decided March 11

Court Decision 2013Do4862, 2013 Jeondo101 decided July 11, 2013

B. According to the reasoning of the judgment below, the court below erred in the facts charged of this case that the defendant was a deadly weapon.

(1) In case of an act of inflicting an injury on the victim D by carrying a dangerous property, breadth;

guilty by applying Articles 3(1) and 2(1)3 of the Act on the Punishment of Forced Acts and Article 257(1) of the Criminal Act

The judgment of the first instance court which judged was affirmed.

Article 3 (1) of the former Punishment of Violences Act shall be construed as a power of an organization or group or an organization or group.

person who has committed a crime as prescribed in any of subparagraphs of Article 2 (1) by showing a threat of force on a virtual basis;

A person who commits a crime by carrying flags or other dangerous articles shall be punished in accordance with the subparagraphs of Article 2 (1).

A person who habitually commits any of the following crimes shall be punished in accordance with Article 2 (1) and Article 2 (1):

Article 257 of the Criminal Act provides that "any person shall be punished in accordance with the following classification:

The first clause provides that a person who commits the crime under paragraph 1 shall be punished by imprisonment for a definite term of not less than three years.

The Act on Punishment of Violences, etc., amended and enforced by Act No. 13718, Jan. 6, 2016, is amended and enforced.

Article 3(1) is deleted, and the Criminal Code amended and enforced by Act No. 13719 on the same day is the former violent act.

Article 258-2 (Special Bodily Injury) shall be newly established in order to prevent the gap in punishment following the above amendment of the Punishment Act.

section 257 of this title, "a threat of collective force or by carrying dangerous objects" in paragraph 1 of this title.

The crime referred to in paragraph (1) or (2) shall be punished by imprisonment with prison labor for not less than one year but not more than ten years.

As such, former violence, which prescribed the aggravated elements of Article 257(1) of the Criminal Act.

Article 258-2 of the Criminal Act instead of deleting Article 3(1) of the Act on the Punishment of Acts and Subordinate Statutes

Article 3 (1) of the former Punishment of Violences Act (amended by Act No. 1) provides that statutory punishment shall be less than that of Article 3 (1) of the same Act

an individual crime even if the general risk of the sign of the above aggravated constituent elements is considered.

The circumstances leading up to the crime, specific types of conduct, and degree of infringement of legal interests, etc. are very diverse;

The previous penal provision that uniformly punishs an aggravated punishment for imprisonment for a limited term of not less than three years is more severe.

The crime of Article 1 (2) of the Criminal Code is a reflective measure taken from the company.

After all, the revision of the law is more severe than that of the old law.

If so, among the facts charged of this case, the defendant's knife, which is a deadly weapon, is temporarily closed.

In accordance with Article 1 (2) of the Criminal Act, the act of inflicting an injury on the victim D shall be the width of the Gu

Article 258-2 (1) of the Criminal Code of the new corporation cannot be punished as aggravated by the provisions of the Act on the Punishment of Forced Acts.

Since punishment can only be imposed, the judgment of the court below premised on the application of the former Punishment of Violences Act.

Now would no longer be maintained.

3. As to the island of violation of the former Punishment of Violences Act (a group, deadly weapons, etc.)

According to the reasoning of the judgment below, the court below held that among the facts charged of this case, the defendant's knife

The former Punishment of Violence Act to arrest victims by carrying a dangerous article;

The conviction of guilty by applying Articles 3(1) and 2(1)2 of this Act and Article 276(1) of the Criminal Act.

The first instance judgment was affirmed.

The former Punishment of Violences Act is a power of an organization or group under Article 3 (1) or an organization or group.

a person who commits any of the crimes referred to in the subparagraphs of Article 2(1) by showing the power under the disguisedly;

A person who commits a crime by carrying flags or other dangerous articles shall be punished in accordance with the subparagraphs of Article 2 (1).

A person who habitually commits any of the following crimes shall be punished in accordance with Article 2 (1) and Article 2 (1):

Article 276 of the Criminal Act provides that "any person shall be punished in accordance with the following classification:

The provision that a person who commits the crime of paragraph (1) shall be punished by imprisonment for a limited term of not less than two years.

C. Meanwhile, Article 278 of the Criminal Act provides that “The exercise of collective power or multiple power” means carrying a dangerous or dangerous object.

If a person commits the crimes of the preceding two Articles, he shall be punished by increasing one half of the penalty specified in the relevant crime.”

A person who illegally arrests or confines another, or in Article 276(1), shall be punished by imprisonment for not more than five years, or seven million won.

(2) The amendment of the Act No. 13718, Jan. 6, 2016, amended by Act No. 13718

Article 3 (1) of the Punishment of Violences, etc. Act was deleted.

이와 같이 구 폭력행위처벌빕 제3조 제1항 중 '흉기나 그 밖의 위험한 물건을 휴대

to delete a part of the "person who commits a crime under Article 276(1) of the Criminal Code";

Similar to the above provisions of the Criminal Act, the elements of a crime are prescribed by statutory penalty only.

Punishment by carrying home or other threatened objects under Article 3 (1) of the former Punishment of Violences Act;

"A person who commits a crime referred to in Article 260 (1), Article 283 (1) (Intimidation), or Article 366 (Destruction, Damage, etc. of Property) of the Act."

Constitutional materials recognized as unconstitutional by losing the legitimacy and balance of the punishment system with respect to the part concerning the punishment system.

It shall not be punished as a penal provision which is unconstitutional, reflecting the purpose of the decision of the board of directors.

It should be regarded as an anti-sexual measure.

Therefore, this crime is committed by the amendment of the law after the crime under Article 1 (2) of the Criminal Code.

Since a sentence does not constitute or is less than that of the old law, it constitutes a new law in accordance with the above provision.

shall be used.

If so, among the facts charged of this case, the defendant's knife, which is a deadly weapon, is temporarily closed.

In accordance with Article 1 (2) of the Criminal Act, the detention of victims shall be an act of violence committed by the Gu, a corporation at the time of the act

Since punishment cannot be imposed by the provisions of the punishment law, it is premised on the application of the provisions of the former Punishment of Violences Act.

The judgment of the court below no longer can no longer be maintained.

4. Scope of reversal

The judgment of the court of first instance maintained by the court below shall contain the above reasons for reversal and the remaining convictions.

Since a sentence was rendered on the ground that there is a concurrent relationship under the former part of Article 37, the lower court ultimately rendered a single sentence.

All judgments must be reversed.

5. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below is reversed and the case is remanded.

The case is remanded to the lower court for determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The decision shall be rendered as above.

Justices Lee Sang-hoon

Justices Kim Jae-sik, Counsel for the defendant

Justices Cho Jae-dae