2017Do15269 A. Violation of the Punishment of Violences, etc. Act (a)

(b) fraud,

A

Defendant

Incheon District Court Decision 2017No605, 1937 (Consolidation) Decided September 1, 2017

December 13, 2017

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Article 7 of the Punishment of Violences, etc. Act (hereinafter referred to as "Act on the Punishment of Violences, etc.") shall be construed as "justifiable grounds;

Deadly weapons or other dangerous objects that are likely to be used for a crime prescribed in this Act without any justifiable reason;

A person who carries, provides, or arranges another person shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding three million won.

(1)"A person who has committed a crime of collective or habitual or special violence" shall be deemed to have been committed.

by punishing persons who are likely to engage in such activities to maintain public peace and order;

From the enactment of the law to the date of the amendment, the law has been maintained without any substantial change, and such a change has been

The offense of violation of the Punishment of Violences Act is committed as a preliminary offense of "an offense provided for in this Act".

the amendment of the Punishment of Violences Act and general legal principles on the interpretation of penal provisions.

And Contents, the legislative intent and text of Article 7 of the Punishment of Violences Act, and the violation of the Punishment of Violences Act (e.g., crime)

(i)In full view of the nature and requirements for establishment of the crime, the term "Article 7 of the Punishment of Violences Act" is defined.

It is reasonable to interpret that only "crimes specified in the Punishment of Violences Act" means crimes specified in the Punishment of Violences Act.

C. (See, e.g., Supreme Court Decision 2017Do7687, Sept. 21, 2017).

In addition, Article 7 of the Punishment of Violences Act provides that "the provisions of this Act shall apply to deadly weapons and other dangerous articles."

whether it is likely to be used for a crime in question or not, depending on a specific case,

shall be determined according to the type, the reason for carrying the goods, the circumstances of carrying the goods, the circumstances before and after the carrying, etc.

must be the prosecutor (see, e.g., Supreme Court Decision 2001Do3860, Sept. 25, 2001). The burden of proof is the prosecutor.

section 30.

2. As to the violation of the Punishment of Violences Act among the facts charged in the instant case, the lower court indicated in its reasoning.

Defendant was found guilty on the same ground.

3. However, the legal doctrine as seen earlier is applicable to the circumstances revealed by the evidence duly admitted.

In light of the results, the following is judged.

(a) The defendant carrying a knife by the police who called out after receiving a report of a witness;

JB as follows: (a) there was money to be received from the police and not received from theJ; and (b) there was no money to be received from the police; and

In order to threaten, another person who has carried a knife, has not participated in the crime, and has no threat alone.

I stated that they tried to do so.

B. The Punishment of Violences Act was partially amended by Act No. 13718 on January 6, 2016, and was partially amended for habitual assault, etc.

The former Punishment of Violences Act (amended by the same Act as the above), which is a provision for aggravated punishment of assault crimes;

hereinafter the same shall apply) Article 2(1) of the Act and Article 2(1) of the Act as an aggravated provision for special violence crimes such as carrying a deadly

Article 3(1) and (3) of the Punishment of Violences Act were deleted, and thereby, the punishment of violence was previously imposed.

The above violent crimes defined in the law are punished only for the corresponding provision of the Criminal Code, which is a basic law.

As above, the Punishment of Violences Act does not provide for it.

(c) Crimes of special violence, such as portable violence with a deadly weapon, are no longer committed under the Punishment of Violences Act;

As long as the act of the defendant was committed, the above act of the defendant carrying a knife with the intent to use for violent crime under the Criminal Act.

(b) Other deadly weapons or any other weapons or articles that are likely to be used only for a crime under the Punishment of Violences Act.

It is difficult to regard it as a case of carrying dangerous objects, and other crimes provided for in the Punishment of Violences Act.

Since there is no proof that there is a concern for public use of the crime, the defendant is in violation of the Punishment of Violences Act.

shall not be punished for such reason.

4. Nevertheless, the court below did not examine the above circumstances properly and without examining them.

The facts charged were found guilty. Such judgment of the court below is Article 7 of the Punishment of Violences Act.

The judgment affected the conclusion of the judgment by misapprehending the legal principles as to the constituent elements and failing to exhaust all necessary deliberations.

There is an error.

5. The part concerning the violation of the Punishment of Violences Act in the judgment of the court below should be reversed, and that part shall be reversed.

Inasmuch as a single sentence was imposed on the remainder recognized as a crime, the judgment of the court below is eventually delivered.

shall be reversed.

6. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is reversed.

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.

It is decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Jae-han

Justices Park Il-san