(영문) 대법원 2015.3.20. 선고 2015도1823 판결

The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 329 of the Criminal Act to the facts charged in the instant case.

However, on February 26, 2015, the Constitutional Court rendered a decision of unconstitutionality as to the part concerning Article 329 of the Criminal Act among Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes applied by the lower court (see, e.g., Constitutional Court Decision 2014HunGa16, Feb. 26, 2015). Accordingly, the aforementioned provision of the Act became retroactively null and void pursuant to Article 47(3) of the Constitutional Court Act. Meanwhile, in a case where the penal Act or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the case against the Defendant who was indicted by applying the relevant provision of the Act constitutes a crime not committed (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007).

Therefore, without further proceeding to decide on 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.