(영문) 대법원 2015.12.24. 선고 2015도13840 판결

Where there is no change in the punishment even after the change in the law after the crime has been committed, the method of action shall be applied in accordance with Article 1 (1) of the Criminal Act.

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 the facts charged in the instant case that the Defendant by carrying dangerous articles on October 5, 2014, and threatened the victim. However, the lower court did not err by misapprehending the relevant provisions of the former Punishment of Violences, etc. Act, which were enforced at the time of the said crime, and was amended by Act No. 7891, Mar. 24, 2006; and was amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as the “former Punishment of Violences Act”). However, the lower court did not change the sentence in comparison with Article 3(1) and Article 2(1)1 of the former Punishment of Violences, etc. Act, Article 283(1) of the Criminal Act, and thus, did not affect the conclusion of the judgment.

On September 24, 2015, the Constitutional Court sentenced that "the part concerning a person who commits a crime under Article 283 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3 (1) of the former Punishment of Violences Act, and the part concerning a person who commits a crime under Article 283 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3 (1) of the Punishment of Violences Act shall be unconstitutional (see, e.g., Constitutional Court Order 2014Hun-Ba154, Sept. 9, 2015)" (see, e.g., Constitutional Court Order 2014Hun-Ba154, Sept. 24, 2015) is retroactively invalidated pursuant to the main sentence of

(1) If the law or legal provision on the punishment becomes retroactively null and void due to a decision of unconstitutionality

w The lower judgment convicting the Defendant of the instant facts charged was no longer maintained, on the ground that the instant case charged by applying the pertinent statutory provision was not a crime. Therefore, without examining 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 on the bench.