2015Do16074 A. Violation of the Punishment of Violences, etc. Act (collectively, deadly weapons, etc.)

(C) damage;

(b) Interference with business;

(c) Violation of the Road Traffic Act;

(d) Violence;

A

Pacciny arsen

Attorneys Y (Korean National Assembly)

Incheon District Court Decision 2015No2845 Decided September 23, 2015

December 23, 2015

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

The grounds of appeal are examined.

The lower court upheld the first instance judgment that convicted of the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 366 of the Criminal Act with regard to the destruction of and damage to dangerous goods among the facts charged in the instant case.

However, on September 24, 2015, the Constitutional Court rendered a decision that "a person who commits a crime under Article 366 of the Criminal Act by carrying a deadly weapon or other dangerous articles with him/her is in violation of the Constitution" (the Constitutional Court Decision 2014HunBa154, 398 (Merger), 2015HunBa3, 9, 215HunBa14, 2015HunBa14, 2015HunBa18, 2005HunBa18, 205HunBa15, 2015HunBa18, 25 (Consolidation)) of the Punishment of Violences, etc. Act, and Article 3(1) of the same Act retroactively loses its effect pursuant to the main sentence of Article 47(3) of the Constitutional Court Act.

As such, in a case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the facts charged charged by applying the pertinent legal provision are not a crime, and thus the judgment of the court below which applied the above legal provision to the damage of property carrying dangerous goods among the facts charged in this case cannot be maintained as it is.

Therefore, the part of the judgment of the court below against the Punishment of Violences, etc. due to the destruction of dangerous goods and the damage of property carrying dangerous goods (collective, deadly weapons registered, etc.) should be reversed. The above part is concurrent crimes with the remaining parts found guilty, and the court below should pronounce a single punishment. Accordingly, the judgment of the court below is ultimately reversed.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok

Justices Kim Gin-young

Note Justice Lee Dong-won