When the Punishment of Violences, etc. Act was partially amended by Act No. 13718 on January 6, 2016 and enforced on the same day, whether violent crimes under the Criminal Act cannot be punished pursuant to the Punishment of Violences, etc. Act unless they meet the separate elements of the Punishment of Violences, etc. Act (affirmative)

Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; Act No. 12896, Dec. 30, 2014); Article 260(1) of the Criminal Act (amended by Act No. 12896, Dec. 30, 2014); Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); and Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 260(1) of the Criminal Act (amended by Act No. 12896, Dec. 30, 201) of the same Act (amended by Act No. 12896, Dec. 30, 2014) violates the legal principle of equality.

The Act on the Punishment of Violences, Etc. (hereinafter “Assault Punishment Act”) was partially amended and enforced on January 6, 2016 in order to improve the provisions of Article 13718 subject to a decision of unconstitutionality and the provisions of similar aggravated punishment following such decision of unconstitutionality. Accordingly, violent crimes under the Criminal Act may not be punished under the Punishment of Violences Act unless they meet the separate requirements under the Punishment of Violences Act.

In addition, Article 7 of the Punishment of Violences Act provides that "any person who carries, provides or arranges any deadly weapons or other dangerous articles that are likely to be used for a crime under this Act without justifiable grounds shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won." Such a crime of violating the Punishment of Violences Act has the character as a preliminary crime of "a crime prescribed by this Act", which is an object of the crime.

In light of the general legal principles as to the interpretation of the penal provisions as seen above, and the background and contents of the amendment of the Punishment of Violences Act, and the language, contents, and structure of Article 7 of the Punishment of Violences Act, it is reasonable to interpret that the term “crimes prescribed by this Act” under Article 7 of the Punishment of Violences Act refers only to the crimes prescribed by the Punishment of Violences Act.

Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 260(1), 283(1), and 366 of the Criminal Act; Articles 3(1) and (4) of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); Article 2(1) and (2) and (3), Article 3(1) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Article 7 of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016);

Supreme Court en banc Decision 2017Do7687 Decided September 21, 2017 (Gong2017Ha, 2047), Constitutional Court en banc Decision 2014HunBa154, 398, 2015HunBa3, 9, 14, 18, 20, 21, 25 Decided September 24, 2015 (Hun-Ga28, 1415)

Defendant

Prosecutor

Attorneys Lee Jae-sung et al.

Incheon District Court Decision 2017No2729 Decided September 13, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the express penal provisions in the direction unfavorable to the defendant is not permitted as it violates the principle of no punishment without the law (see, e.g., Supreme Court Decisions 201Do7725, Aug. 25, 201; 2012Do4230, Nov. 28, 2013).

Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; Act No. 12896, Dec. 30, 2014); Article 3(1) of the same Act on Punishment of Violences, etc. (amended by Act No. 12896, Dec. 30, 201); Article 260(1)(Intimidation), Article 283(1)(Intimidation), and Article 366(1) of the same Act on “a person who commits a crime under Article 260(1) of the Criminal Act by carrying a deadly weapon or other dangerous object with a deadly weapon or other dangerous object and commits a crime under Article 3(1) of the same Act; Article 260(1)(Intimidation) of the same Act; Article 283(1)(Intimidation); Article 366(1) of the same Act (amended by Act No. 12896, Dec. 30, 2014).

The Act on the Punishment of Violences, Etc. (hereinafter “Assault Punishment Act”) was partially amended and enforced on January 6, 2016 in order to improve the provisions of Article 13718 subject to a decision of unconstitutionality and the provisions of similar aggravated punishment following such decision of unconstitutionality. Accordingly, violent crimes under the Criminal Act may not be punished under the Punishment of Violences Act unless they meet the separate requirements under the Punishment of Violences Act.

In addition, Article 7 of the Punishment of Violences Act provides that "any person who carries, provides or arranges any deadly weapons or other dangerous articles that are likely to be used for a crime under this Act without justifiable grounds shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won." Such a crime of violating the Punishment of Violences Act has the character as a preliminary crime of "a crime prescribed by this Act", which is an object of the crime.

In light of the general legal principles as to the interpretation of the penal provisions as seen above, and the background and contents of the amendment of the Punishment of Violences Act, and the language, contents, and structure of Article 7 of the Punishment of Violences Act, it is reasonable to interpret that “an offense prescribed by this Act” under Article 7 of the Punishment of Violences Act refers only to “an offense prescribed by the Punishment of Violences Act” (see Supreme Court Decision 2017Do7687, Sept. 21, 2017).

2. The court below affirmed the judgment of the court of first instance that acquitted the Defendant on the ground that the interpretation that the crime of violence included in the "crimes" under Article 7 of the Punishment of Violences Act as to the violation of the Punishment of Violences Act among the facts charged in the instant case includes violence crimes under the Criminal Act is not permissible through an excessive interpretation. The court below affirmed the judgment of the court of first instance that acquitted the Defendant on the ground that the relationship between the small-sized knife knife and the Punishment of Violences Act possessed by the Defendant at the time and the collective or habitually violent crimes is rare, and there is no proof of

The lower court did not err by misapprehending the legal doctrine on Article 7 of the Punishment of Violences Act, contrary to what is alleged in the grounds of appeal.

3. The prosecutor's appeal is dismissed on the ground that it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)