(영문) 대법원 2015.4.23. 선고 2015도3023 판결

The lower court upheld the first instance judgment that convicted of the facts charged in the instant 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 that "the part concerning Article 329 of the Criminal Act, etc. in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; Act No. 10210, Mar. 31, 2010; hereinafter referred to as "the Article 47 (3) of the Constitutional Court Act") shall be unconstitutional." Accordingly, the Article 47 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall retroactively lose its effect.

In such a case, the defendant's case indicted by applying the legal provision that lost its effect constitutes a crime (see, e.g., Supreme Court Decision 2004Do9037, Apr. 15, 2005). Accordingly, the judgment of the court below cannot be maintained as it is.

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.