(영문) 대법원 2015.10.29. 선고 2015도12791 판결

The lower court upheld the first instance judgment that convicted Defendant A by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act with respect to intimidation to carry dangerous articles among the facts charged in the instant case against Defendant A (hereinafter “The Punishment of Violences Act”).

However, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who commits a crime under Article 283 (1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous articles in Article 3 (1) of the Punishment of Violences Act applied by the court below after the judgment of the court below was rendered (see Constitutional Court Order 2014Hun-Ba154, Sept. 24, 2015). The provision of the above law is in accordance with the main sentence of Article 47 and (3) of the

The effect of the statute or the provision of the law on punishment has been retroactively invalidated due to the decision of unconstitutionality.

The judgment of the court below which found the defendant guilty of this part of the facts charged was no longer maintained, since the defendant's case which was prosecuted by applying the pertinent provision of law is not a crime.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 as to the violation of the Punishment of Violences Act (a group, deadly weapon, etc.) by Defendant A among the judgment below should be reversed. Since the above part and the remaining part of the above defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence is imposed on the above defendant, the part against Defendant A among the judgment below should be reversed.

Therefore, without examining Defendant A’s grounds of appeal, the part concerning Defendant A among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.