[1] The case where the new law should be applied in accordance with Article 1(2) of the Criminal Act when revising or amending the penal law

[2] In lieu of deletion of Article 3(1) of the former Punishment of Violences, etc. Act, which provides for the aggravated elements of Article 257(2) of the Criminal Act, it is a reflective measure taken from the fact that Article 3(1) of the former Punishment of Violences, etc. Act is more severe than that of the former Punishment of Violences, etc., and it constitutes “when a sentence is more severe than that of the former Punishment of Violences, etc. Act” under Article 1(2) of the Criminal Act (affirmative)

[1] Article 1(2) of the Criminal Act / [2] Articles 1(2), 257(1) and (2), and 258-2(1) of the Criminal Act, Article 2(1)3 of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Article 3(1)(current deleted)

[1] Supreme Court Decision 2009Do12930 Decided March 11, 2010 (Gong2010Sang, 776), Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013 (Gong2013Ha, 1553) / [2] Supreme Court Decision 2015Do17907 Decided January 28, 2016 (Gong2016Sang, 399), Supreme Court Decision 2015Do18280 Decided January 28, 2016

Defendant

Defendant

Attorney Kim Dong-dong

Busan High Court (Chowon) Decision 2013No227 decided December 6, 2013

The guilty part of the judgment of the court below (including the acquittal part of the reasons) shall be reversed, and that part of the case shall be remanded to Busan High Court.

1. The grounds of appeal are examined.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted by the first instance court, although the reasoning of the lower judgment is partially inappropriate, the lower court is justifiable to have determined that the Defendant carried excessive goods, which are dangerous goods, and carried out an injury to the victim Nonindicted Party, and caused the Defendant to commit attempted to destroy a house used for a person’s residence by setting fire. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the principle of due process of law, the exclusion of illegally collected evidence and the rules of evidence, thereby adversely affecting the conclusion

2. The decision shall be made ex officio;

In cases where the evaluation of acts deemed to have been committed as a crime in the past according to the changes in the legal ideology that 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 have been amended or amended in light of the reflect 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 Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

According to the reasoning of the lower judgment, the lower court convicted the Nonindicted Party of the instant charges by applying Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”) and Article 257(2) of the Criminal Act with regard to the act of causing an injury to the victim by carrying excessive excess goods, which are dangerous goods, among the facts charged in the instant case.

Article 3(1) of the former Punishment of Violences Act provides that “Any person who commits a crime under any subparagraph of Article 2(1) by means of force of an organization or a group or by showing a power under the pretending to an organization or a group, or by carrying with himself a deadly weapon or other dangerous articles, shall be punished in accordance with any of the subparagraphs of Article 2(1).” Article 2(1) of the same Act provides that “A person who habitually commits any of the following crimes shall be punished in accordance with the following subparagraphs.” Article 2(1) of the same Act provides that “A person who habitually commits any of the following crimes shall be punished in accordance with Article 257(1) of the Criminal Act, Article 257(2) of the Criminal Act, Article 257(2) of the Criminal Act, shall be punished by imprisonment with prison labor for a limited term of not less than three years. However, the Act on the Punishment of Violences, etc., amended by Act No. 13718, Jan. 6, 2016; and Article 25(1) of the same Act newly established or amended by Act.

As such, Article 257(2) of the Criminal Act, instead of deleting Article 3(1) of the former Punishment of Violences Act, which provides for the aggravated elements of Article 257(2) of the Criminal Act, is newly established under Article 258-2(1) of the Criminal Act, and the statutory penalty is lower than that of Article 3(1) of the former Punishment of Violences Act, even when considering the general risk with which the above aggravated elements are marked, it shall be deemed that the previous penal provision, which uniformly punishs an aggravated punishment for a limited term of not less than three years, is excessive even though the circumstances leading to the individual crime, specific form of act, and the degree of infringement of rights, are diverse. Therefore, it constitutes “when the punishment is heavier than that of the former Act due to a change after the crime” under Article 1(2) of the Criminal Act.

Thus, among the facts charged in this case, the act of inflicting an injury on the victim non-indicted who is still in existence by carrying excessive things, among which the defendant is dangerous, cannot be subject to aggravated punishment pursuant to the former Punishment of Violences Act, a juristic person, and can only be punished pursuant to Article 258-2 (1) of the Criminal Act, which is the new juristic person, pursuant to Article 1(2) of the Criminal Act. Thus, the judgment of the court below that applied the provisions of

On the other hand, the guilty part of the judgment of the court below should be reversed for the reasons mentioned above. Since the remaining guilty part of the judgment of the court below is a concurrent crime under the former part of Article 37 of the Criminal Act with the above reversed part, one punishment should be sentenced to the whole. The guilty part of the judgment of the court below as to the attempted murder among the above reversed part is bound to be reversed in relation to the fact of injury by carrying dangerous articles and the primary and preliminary facts charged. Thus, the guilty part of the judgment of the court below should be reversed in its entirety.

3. Therefore, the guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)