(영문) 대법원 2015.12.10. 선고 2015도16120 판결

Of the facts charged in the instant case, the lower court convicted the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter “Assault Punishment Act”) and Article 283(1) of the Criminal Act.

However, after the judgment of the court below was rendered, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who committed a crime under Article 283 (1) of the Criminal Act by carrying with a deadly weapon or other dangerous articles" in Article 3 (1) of the Punishment of Violences Act applied by the court below (the Constitutional Court Decision 2014HunBa154, Sept. 24, 2015). Accordingly, the above legal provision has retroactively lost its effect pursuant to Article 47 (3) of the Constitutional Court Act. The judgment of unconstitutionality has retroactively lost its effect.

The judgment of the court below which found the defendant guilty of this part of the facts charged was no longer maintained, since the defendant's case which was prosecuted by applying the pertinent provision of law is not a crime.

Therefore, the part of the judgment of the court below regarding the violation of the Punishment of Violences Act (a group, deadly weapon, etc.) should be reversed. Since each of the above and the remaining crimes of the defendant were sentenced to a single punishment in concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below should be reversed in its entirety. Therefore, without examining the grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is