(영문) 대법원 2015.4.9. 선고 2014도17381 판결

The lower court upheld the first instance judgment that applied Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Articles 363 and 30 of the Criminal Act to the facts charged in the instant case.

However, on February 26, 2015, the Constitutional Court rendered a decision that "acquisition" under Article 362 (1) of the Criminal Act among Article 363 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) pursuant to Article 5-4 (4) of the Act on the Aggravated Punishment, etc. of Specific Crimes violates the Constitution (Article 2014Hun-Ga16, 19, 23 (Consolidation) of the Constitution, and Article 47 (3) of the Constitutional Court Act was retroactively invalidated.

As such, in a case where the penal law or a legal provision retroactively becomes void due to the decision of unconstitutionality, since the facts charged charged by applying the pertinent provision are not a crime, the judgment of the court of first instance cannot be maintained as it is (the judgment of the court of first instance, which maintained the original trial, stated only the applicable provisions of Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 363 of the Criminal Act, but also applied the "acquisition" of Article 362(1) of the Criminal Act among Article 363 of the Criminal Act in light of criminal facts. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating