2015Do13545 Violation of the Punishment of Violences, etc. Act (Assaults against groups, deadly weapons, etc.)

【Violation of the Punishment of Violences, etc. Act (a group ·

In violation of the Punishment of Violences, etc. Act (abrupt by Deadly Weapons);

Damage to property, such as lethal weapons, etc.

A

Defendant 1

Suwon District Court Decision 2014No7625 Decided August 17, 2015

November 17, 2015

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

1. The grounds of appeal are examined.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court of first instance, it is just to find the court below guilty of having injured the victim by carrying dangerous articles among the facts constituting the crime of the first instance as stated in its judgment, and contrary to what is alleged in the grounds of appeal, the court below did not err in the misapprehension of the principle of free evaluation of evidence

2. The decision shall be made ex officio;

Of the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as the “former Punishment of Violences Act”) and Article 366 of the Criminal Act.

However, after the judgment of the court below was rendered, the Constitutional Court rendered a decision of unconstitutionality as to the part concerning "a person who commits a crime under Articles 260 (1), 283 (1) and 366 of the Criminal Act by carrying a deadly weapon or other dangerous articles in Article 3 (1) of the former Punishment of Violences Act applied by the court below (the Constitutional Court rendered a decision of unconstitutionality as to "a person who commits a crime under Articles 260 (1), 283 (1) and 366 of the Criminal Act" (the Constitutional Court Decision 2014Hun-Ba154,398 (Joint), 2015Hun-Ba3, 9, 215Hun-Ga14, 2015Hun-Ga18, 205 (Joint), and 25 (Joint) of the same Act)" (see, e.g., Supreme Court Decision 2008Hun-Ga2587, Sept. 24, 2015).

On the other hand, the first instance court, maintained by the lower court, rendered a single sentence on the ground that the violation of the Punishment of Violences, etc. Act (a violation of the Act on the Punishment of Violences, etc. (a group, a deadly weapon, a damage, etc.) and the remaining guilty parts are in a commercial concurrent relationship under Article 40 of the Criminal Act.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the 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

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee