(영문) 대법원 2015.11.12. 선고 2015도12773 판결

The part of the judgment of the court below, excluding the part concerning the crime of injury, shall be reversed, and this part of the case shall be remanded to the Panel Division of the Gwangju District Court.

Reasons

1. Ex officio determination

The lower court convicted the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act with regard to intimidation to carry dangerous articles among the facts charged in the instant case (hereinafter “Assault Punishment Act”).

On September 24, 2015, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who committed a crime under Article 283 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles with a deadly weapon or other dangerous articles" (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015). Accordingly, the aforementioned provision of the law became retroactively null and void pursuant to the main sentence of Article 47 (3) of the Constitutional Court Act. A decision of unconstitutionality has retroactively lost its effect.

The Defendant’s case indicted by applying the pertinent statutory provision constitutes a crime not committed (see, e.g., Supreme Court Decision 2005Do8317, Jun. 28, 2007). As such, the lower judgment convicting this part of the facts charged was no longer maintained.

2. Determination on the grounds of appeal on the crime of injury

Examining the evidence duly adopted and examined by the lower court and the first instance court, it is justifiable for the lower court to have found the Defendant guilty of injury among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. As such, the argument that the sentencing of a sentence is unreasonable on the part of the crime of bodily injury for which a more minor sentence

3. Scope of reversal

The lower court, among the facts of the instant crime, deemed the parts concerning the violation of the Punishment of Violence Act (a collective, deadly weapon, etc.) and the remaining facts of the crime as concurrent crimes, and sentenced one imprisonment with prison labor for each of them as to the violation of the Punishment of Violences Act (a collective, deadly weapon, etc.) and the crime of interference with business, and sentenced a fine separately for the crime of injury. In this case, the part concerning the crime of violation of the Punishment of Violences Act (a collective, deadly weapon, etc.) should be treated as a whole in litigation, and as long as the lower court erred in the judgment regarding the crime of intimidation (a collective, deadly weapon, etc., the part concerning the remaining crime shall not be exempted from destruction. However, since the part concerning the crime of injury, which was imposed with a separate fine, should be separately treated in litigation, this part does not fall under the scope of reversal (see Supreme Court Decision 2008Do11921, Apr. 23,

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below excluding the part of the crime of injury is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent