2015Do17838 A. Violation of the Punishment of Violences, etc. Act

(Bodily Injury resulting from Deadly Weapons, etc.)

B. Performance of official duties

A

Defendant

Attorney N(N)

Daegu District Court Decision 2015No2165 Decided October 30, 2015

February 18, 2016

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

Judgment ex officio is made.

1. Act which was committed in the past according to the change of the legal ideology which was the basis of the enactment of penal statutes;

The evaluation has changed and recognized it as a crime, and the punishment itself has been unfair; or

section 1(2) of the Criminal Code is amended or amended in the reflective consideration that an excessive punishment has been imposed.

Pursuant to paragraph (1), new law shall be applied (Supreme Court Decision 2009Do12930 Decided March 11, 2010, Supreme Court Decision 2009Do12930, Supreme Court Decision 20

Seoul High Court Decision 2013Do4862, 2013 Jeondo101 decided July 11, 2013

2. A. The lower court: (a) out of the facts charged in this case, the kitchen knife, which is a dangerous article of the Defendant.

The former Punishment of Violences, etc. Act (amended by Act No. 1354, Jan. 1, 2016)

6. Article 3 of the former Punishment of Violences Act (amended by Act No. 13718; hereinafter referred to as the "former Punishment of Violences Act").

The first instance judgment convicting him/her by applying Articles 1 and 2(1)3 of the Criminal Act and Article 257(1) of the Criminal Act.

The maintenance was maintained.

(b) Article 3 (1) of the former Punishment of Violences Act means an organization or group by force or by force;

A person who commits any of the crimes referred to in the subparagraphs of Article 2(1) by referring to the power of a group; or

A person who commits a crime by carrying a deadly weapon or other dangerous article shall be punished by the formula set forth in the subparagraphs of Article 2 (1).

A person who habitually commits any of the following crimes shall be punished in accordance with the Act, and Article 2 (1) of the Act shall apply:

Article 257(1) of the Criminal Act provides that "any person shall be punished in accordance with the following classification:

It stipulated that a person who commits a crime such as an injury shall be punished by imprisonment for a limited term of not less than three years.

Article 3 of the Punishment of Violences, etc. Act amended and enforced by Act No. 13718, Jan. 6, 2016

Article 258-2 in the Criminal Code amended and enforced by Act No. 13719 on the same day.

(Special Injury) A newly created and "a dangerous or visible threat of force of an organization or majority" in paragraph (1).

(1) When a person commits a crime under Article 257 (1) or (2) by carrying himself/herself, he/she shall be punished for not less than one year nor more than ten years.

I stated that “A person shall be punished in calendar.”

As such, the former Punishment of Violence defined the aggravated elements of Article 257(1) of the Criminal Act

In lieu of deletion of Article 3 (1) of the Punishment Act, a new provision of Article 258-2 (1) of the Criminal Act is established, and such statutory penalty is imposed.

The provision of Article 3(1) of the former Punishment of Violences is lower than that of Article 3(1) of the same Act.

Considering the general risk of the individual crime, the details of the individual crime and the specific form of action;

Although the degree of infringement of legal interests is very diverse, it shall be uniformly aggravated by imprisonment for not less than three years.

It shall be deemed that the previous penal provisions are too excessive and that they are anti-sexual measures from the point of view.

Since this is a matter of course, it is more severe than the old law due to the change of the law after the crime under Article 1 (2) of the Criminal Code.

‘at the time'.

If so, among the facts charged of this case, the victim is carrying a kitchen, which is dangerous things of the defendant.

C In accordance with Article 1(2) of the Criminal Act, the former Punishment of Violences Act, a corporation at the time of an act of inflicting an injury

In accordance with the provisions of Article 258-2(1) of the Criminal Code, a new corporation can not be punished for an aggravated punishment.

Since the judgment of the court below is merely that is premised on the application of the former Punishment of Violences Act, this part of the judgment below is more effective.

It has become impossible to maintain the award.

C. Meanwhile, the lower court held that the facts charged and the remaining facts charged constitute concurrent crimes under the former part of Article 37 of the Criminal Act.

Since the judgment of the court of first instance which sentenced a single punishment on the ground that it was in a relationship, the judgment of the court below

shall be reversed.

3. Therefore, without examining the grounds of appeal, we reverse the judgment below and the case is remanded again.

Opinions of all participating Justices on the bench shall be remanded to the lower court for a trial and determination.

(2) It is so decided as per Disposition.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok