Whether Article 1(2) of the Criminal Act is a reflective measure taken from the fact that the addition of a fine by the amendment of Article 324 of the former Criminal Act, which only provides for a statutory penalty, constitutes “when the punishment is more severe than the former Act due to the amendment of the Act after the crime” (affirmative)

Article 324 of the former Criminal Act (Amended by Act No. 13719, Jan. 6, 2016) (see current Article 324(1)); Articles 1(2) and 324(1) of the Criminal Act

Supreme Court Decision 2009Do12930 Decided March 11, 2010 (Gong2010Sang, 776)

Defendant

Defendant

Attorney Han Han-jin

Suwon District Court Decision 2015No6073 decided December 22, 2015

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

Judgment ex officio is made.

1. In cases where the evaluation of acts deemed a crime committed in the past according to the changes in the legal ideology, which served as the reason for the enactment of penal statutes, has changed, and the evaluation thereof has been recognized and punished as a crime itself, or where the Acts and subordinate statutes were amended or amended from the reflective consideration that the punishment was excessive, the new law shall be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decision 2013Do4862, Jul. 11, 2013; 2013Do101, Jul.

2. A. Of the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant by applying Article 2(2) and Article 2(1)2 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”) and Article 324 of the former Criminal Act (amended by Act No. 13719, Jan. 6, 2016; hereinafter “former Criminal Act”).

B. Article 2(2) of the former Punishment of Violences Act provides that where two or more persons jointly commit a crime under Article 324 of the former Criminal Act, the punishment by up to 1/2 of the former Criminal Act shall be aggravated.

However, Article 324 of the former Criminal Act provides, “Any person who interferes with another’s exercise of right by violence or intimidation or has another person do an unobligatory act shall be punished by imprisonment with prison labor for not more than five years.” However, Article 324(1) of the Criminal Act (amended by Act No. 13719, Jan. 6, 2016; effective the same day) which was enforced after the judgment of the court below was rendered, provides, “Any person who interferes with another’s exercise of right by violence or intimidation or has another person do an unobligatory act shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 30 million won.” This is a legal penalty for a fine. This appears to be a reflective measure that appears from the fact that the previous measure, which was to be punished by imprisonment with prison labor for a minor coercion of crimes, is excessive.” Thus, Article 1(2) of the Criminal Act constitutes “when a punishment is more severe than the former Act due to a change

Therefore, among the facts charged in the instant case, the Defendant’s act of threatening the victim in collaboration with the Nonindicted Party and having the victim do an unobligatory act cannot be punished pursuant to Article 1(2) of the Criminal Act, and can only be punished pursuant to Article 324(1) of the former Criminal Act, which is a new corporation, pursuant to Article 324(1) of the Criminal Act. Thus, the lower judgment that applied Article 324 of the former

C. Meanwhile, the lower court maintained the first instance judgment that sentenced the Defendant to a single punishment on the grounds that the above part of the facts charged and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, reversed not only the above part of the facts charged but also the remainder of

3. 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.

Justices Park Poe-dae (Presiding Justice)