Whether Article 2(1) of the former Punishment of Violences, etc. Act, which provides for aggravated elements for violent crimes under the Criminal Act, is a reflective measure taken from the fact that the previous measure that uniformly aggravated punishment of the relevant crime is unfair or excessive punishment is excessive, and that the new law should be applied in accordance with Article 1(2) of the Criminal Act (affirmative)

Articles 1(2) and 260 of the Criminal Act; Article 2(1) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016) (current Deletion)

Supreme Court Decision 2009Do12930 Decided March 11, 2010 (Gong2010Sang, 776), Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013 (Gong2013Ha, 1553)

Defendant

Defendant

Attorney-at-Law

Seoul Northern District Court Decision 2015No1567 decided November 18, 2015

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

1. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the reasons indicated in its holding, the lower court rejected the Defendant’s allegation in the grounds of appeal as to the Defendant’s mental and physical disorder, on the grounds that the Defendant did not have or lacks the ability to discern things at the time of committing the instant crime. The allegation in the grounds of appeal as to this part is merely an error of the lower court’s determination of evidence and probative value, which actually belong to the lower court’s free judgment, and there is no error of law by exceeding the bounds of the principle of free evaluation of evidence, even if examining the reasoning of the lower judgment in light of the

Meanwhile, according to the records, the defendant appealed against the judgment of the court of first instance, and asserted a misapprehension of the legal principle as well as unfair sentencing and mental and physical disability as the grounds for appeal, but withdrawn the grounds for appeal of misapprehension of the legal principle on the date of the first trial of the court below. In this case, the allegation that the judgment below

2. The decision shall be made ex officio;

A. Article 2(1) of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”) provides that “A person who habitually commits the following crimes shall be punished in accordance with the following classification” (Article 2(1) of the former Punishment of Violences, etc. Act provides for the list of violent crimes prescribed by the Criminal Act and the corresponding statutory punishment. However, the Act on the Punishment of Violences, etc., amended and enforced by Act No. 13718, Jan. 6, 2016, deleted Article 2(1) and did not separately stipulate transitional provisions.

As such, the purpose of deletion of Article 2(1) of the former Punishment of Violences Act, which provides for aggravated elements for violent crimes as prescribed by the Criminal Act, is to be deemed as anti-sexual measures, even if the general risk of habitually committing violence, which is a mark of the aggravated elements, is considered to be very different from the circumstances leading to the individual crime, specific form of act, and the degree of infringement of legal interests, but the previous measure that uniformly made the relevant aggravated punishment to be unfair, or the excessive punishment is excessive.

Therefore, since this constitutes “when an act does not constitute a crime due to a change in the law after the crime or a punishment is more severe than the former law” under Article 1(2) of the Criminal Act, the new law should be applied in accordance with the said provision (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

B. The lower court upheld the first instance judgment convicting the Defendant of the instant facts charged by habitually assaulting the victim by applying Article 2(1)1 of the former Punishment of Violences Act and Article 260(1) of the Criminal Act.

However, according to the above legal principles, the facts charged in this case cannot be punished by applying the provisions of the former Punishment of Violences Act, which is a juristic person at the time of an act pursuant to Article 1(2) of the Criminal Act. Thus, the judgment of the court below is no longer

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case 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 Shin (Presiding Justice)