2011No53 (a) General traffic obstruction

B. Violation of Building Act

(c) Violation of the Assembly and Demonstration Act;

D. Violation of the Road Act,

(e) Violation of public property and Commodity Management Act;

F. Violation of the State Public Officials Act

1. (a) b. (c) d. f. A;

2. B

3. (f) C.

Defendants and Prosecutor

National Emergency, Kim Jong-si, Kim Jong-si, Lee Chang-si, Cho Jae-joon, Kim Jong-Un, and Scenic-si (Public trial)

Attorney BM (for the defendant)

Chuncheon District Court 201, 11 January 1, 2009 Highest 293, 515 (Consolidation), 723 (Jick)

Gohap, 160(combined), 2009, 641(Consolidated) Judgment

May 15, 2013

The judgment of the court below is reversed.

Defendant A shall be punished by a fine of KRW 1,000,00, by a fine of KRW 500,000, by a fine of KRW 500,00, and by a fine of KRW 500,00.

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

To order the Defendants to pay an amount equivalent to each of the above fines.

All appeals by the Defendants are dismissed.

1. Summary of prosecutor's grounds for appeal;

The sentence of the court below (the fine of 2,500,000 won, the fine of 1,500,000 won, the fine of 1,50,000 won for each of the defendant B, and C) is too uneased and unreasonable.

2. Determination

A. As to the Defendants’ appeal

The Defendants did not submit the grounds for appeal within the due period for submission of the grounds for appeal, and each of the appeals filed by the Defendants does not state the grounds for appeal, and thus, the appeal shall be dismissed by decision under Article 361-4(1) of the Criminal Procedure Act. However, as long as a judgment is rendered again on the grounds for ex officio judgment as follows, all appeals filed by the Defendants shall be dismissed

B. Ex officio Judgment

B. Before the prosecutor’s judgment on the grounds for appeal, the court below applied Articles 84 and 66(1) of the current State Public Officials Act to the Defendants’ violation of each of the State Public Officials Act. The statutory penalty is stipulated as imprisonment for not more than one year or a fine not exceeding five million won. However, Article 84 of the State Public Officials Act was partially amended by Act No. 10148 on March 22, 2010 and enforced the same day, and there is no separate provision on the application of the penal provisions of the former State Public Officials Act prior to the enforcement of the amended Act. The Defendants’ violation of each of the State Public Officials Act was reduced between June 2, 2009 and July 2009, the revised State Public Officials Act was enforced, and the court below should have applied the former State Public Officials Act to the Defendants’ violation of each of the State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter referred to as “former Public Officials Act”).

3. Conclusion

Therefore, the appeal by the Defendants is dismissed in accordance with Article 361-4(1) of the Criminal Procedure Act. Since there is a ground for ex officio reversal, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the prosecutor's respective arguments on unfair sentencing against the Defendants. It is again decided as follows.

【Fact-Finding of Facts and Summary of Evidence】

The summary of the facts and evidence recognized by this Court is the same as that of each corresponding column of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant A: (a) Articles 84 and 66(1) of the former State Public Officials Act; (b) Article 30 of the Criminal Act; (c) Article 30 of the Criminal Act; (d) Article 185 of the Criminal Act; (c) Article 110 Subparag. 3 of the Building Act; (d) Article 20(1) of the Building Act (unauthorized Temporary Building; (e) Article 23 Subparag. 1 and Article 10 of the Assembly and Demonstration Act; (e) Article 97 Subparag. 3 and Article 38(1) of the Road Act; (e) Article 30 of the same Act; (e) Article 185 of the same Act; (e) Article 185 of the same Act; (e) Article 110 Subparag. 3 and Article 20(1) of the same Act; (e) Article 97 Subparag. 3 and Article 38(1) of the same Act; (e) Article 19(1) of the former Public Property and Commodity Management Act (amended by Act No.

B. Defendant B: Articles 84 and 66(1) of the former State Public Officials Act; Article 30 of the Criminal Act (collective acts; Article 209, 7, 19 of the Assembly and Demonstration Act; Article 209, 2009, 7, and 19 of the Act)

C. Defendant C: Articles 84 and 66(1) of the former State Public Officials Act; Article 30 of the Criminal Act (collective act; Article 20 of the Assembly and Demonstration Act; Article 20 of the Assembly and Demonstration Act’s participation in the National Assembly and Demonstration Act on July 19, 2009)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The presiding judge, the subordinate judge

Judges Choi Jin-jin

Judges Han-ok

1) Supreme Court Decision 2011Do12407 Decided July 26, 2012