Aggravated Punishment for Crime of

Intimidation

(16-2(B) KCCR 446, 2003Hun-Ka12, December 16, 2004)

Held, the relevant provision of the Punishment of Violences, etc. Act punishing those who committed the crime of intimidation by an aggravated sentence under certain conditions is in violation of the Constitution.

Background of the Case

The Criminal Act provides that

A person who inflicts a bodily injury upon another shall be punished by imprisonment for not more than seven years or suspension of qualifications for not more than ten years or by a fine

not exceeding ten million won,

A person who uses violence against another shall be punished by imprisonment for not more than two years, a fine not exceeding

five million won, detention, or a minor fine,

A person who illegally arrests or confines another, shall be punished by imprisonment for not more than five years, or a fine

not exceeding seven million won,

A person who intimidates another shall be punished by imprisonment for not more than three years, a fine of not more than

five million won, detention or a minor fine,

A person who intrudes upon ones residence, or who refuses to leave such a place upon demand, shall be punished by imprisonment for not more than three years or by a fine not exceeding five

million won,

A person who obstructs another from exercising his right by violence, shall be punished by imprisonment for not more than five

years,

A person who, by extortion, causes another to surrender his property or obtains pecuniary advantage from the latter, shall be punished by imprisonment for not more than ten years or by a fine

not exceeding twenty million won,

A person who, by damaging another's property, reduces their utility, shall be punished by imprisonment for not more than three

years or by a fine not exceeding seven million won.

The Punishment of Violences, etc. Act(hereinafter referred to as the "Violences Act") provides that If a person commits a crime listed in the above Criminal Act at night, carrying with himself any weapon or other dangerous articles, he or she shall be punished by aggravated sentence. The requesting petitioner was prosecuted for the violation of the Violences Act, for allegedly intimidating the victims at nighttime by holding in hand and brandishing a kitchen knife, which is a dangerous object, towards the victims and showing the attitude likely to harm their life or body. The underlying court reviewing the above case requested the constitutionality review on the ground that the provision of the Violences Act punishing the

crime of intimidation by aggravated sentence was unconstitutional.

Summary of the Decision

The Constitutional Court, in the unanimous opinion of all justices, has issued the decision holding that the statutory provisions at issue in this case is in violation of the Constitution. The summary of the grounds for the Court's decision is stated in

the following paragraphs.

1. In determining the type and the degree of the statutory sentence for a crime, the request for the respect and the protection for human dignity and values against the threat of criminal punishment under Article 10 of the Constitution should be observed, the statutory sentence should be determined within the range enabling the application of the principle of different punishment for different crimes pursuant to the spirit of prohibition of excessive

legislation of Section 2 of Article 37 of the Constitution for the substantive realization of the principle of the government by the rule of law, and the appropriate proportion should be maintained so that the criminal punishment corresponds to the nature of the crime

and the responsibility therefor.

The balance between crime and punishment should be consistent with the value system of the time that is based upon the constitutional order. Therefore, a fresh review over the statutory sentence in the basic law of the Criminal Act is required as a matter of principle when the amount of sentence for a specific crime is no longer appropriate due to changes in social circumstances, while, however, the amount of criminal punishment should not exceed the degree of responsibility of the actor also when the

sentence is aggravated for special reasons.

The provisions of the aggravated punishment in the Violences Act including the statutory provision at issue in this case provide for uniform sentencing of incarceration for the minimum of five(5) years for the respective acts of violating the pertinent provisions of the Criminal Act to which the respective provisions of the Violences Act apply. Here, the above respective crimes under the Criminal Act considerably vary in terms of the seriousness of the crime, the mode of the act, and the degree of danger. Accordingly, the original statutory sentences for such crimes greatly vary in terms of severity, from the lower end of possible penal detention or minor fine in the cases of violence and intimidation, to the higher end of the imprisonment for the maximum of ten(10) years in the cases of infliction of bodily injury and extortion. Uniformly imposing the sentence of imprisonment for the minimum of five(5) years solely for the reason of committing the act at nighttime and carrying a weapon or other dangerous articles is contrary not only to the principle of punishment by statute pursued by a the government by rule of law in its substantive and social meanings but also to the principle of prohibition against excessiveness or the principle of proportionality which is the constitutional limit that should be observed in enacting the legislation restrictive of the basic right.

2. It may be desirable to punish violence committed at nighttime while carrying a weapon and other dangerous articles more severely than the violence committed during daytime without carrying a weapon or other dangerous articles, for the former is worse in terms of the seriousness of the crime and the degree of danger. However, the aggravation of the statutory sentence is justifiable when it is an aggravation by a certain degree starting from the existing statutory sentence under the Criminal Act as the standard, and the appropriate degree of aggravation should remain in the

scope that is not clearly unjust compared with the similar crimes.

Even if the provisions of the aggravated punishment in the Violences Act are the choice made by the legislators for the achievement of the legislative purpose of eradication of the act of violence, the statutory provision at issue in this case judges the person who committed "intimidation" identically to the person who committed infliction of bodily injury, illegal confinement or extortion, for the reason of the time and method of crime, namely the "possession of the dangerous object at nighttime," while the content of the act and the consequential illegality of the actor completely differ. This is a clearly arbitrary identical treatment of those that should be treated differently, and a conspicuous lack of proportionality in the criminal punishment system as the result

thereof, thus is also in violation of the principle of equality.