2015Do16134(a). Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Special Rape)

(b) Violation of the Punishment of Violences, etc. Act (collectively weapons, etc.);

Madin)

(c) Violation of the Punishment of Violences, etc. Act;

(d) Fraud;

A

Defendant

Attorney N(N)

Seoul High Court Decision 2015No2118 Decided September 24, 2015

December 10, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (special rape)

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, the argument that there was an error of mistake of facts or misapprehension of legal principles in the judgment of the court of first instance does not constitute a legitimate ground for appeal (see, e.g., Supreme Court Decision 2006, 105Do9825, Oct. 10, 26). Furthermore, even if examining the records,

2. As to the violation of the Punishment of Violences, etc. Act (a collective action, a deadly weapon, etc.), the lower court convicted him/her of violating the Act on the Punishment of Violences, etc. (a collective action, a deadly weapon, etc.), by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act.

However, on September 24, 2015, 2014HunBa154, the Constitutional Court rendered a decision that "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 (hereinafter "the provision of this case") is in violation of the Constitution."

If so, the provision of this case is unconstitutional, pursuant to Article 47 (3) of the Constitutional Court Act.

Since the effect of the provision of this case was retroactively lost, this part of the facts charged which was prosecuted by applying the provision of this case constitutes a case that is not a crime.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged was eventually unable to be maintained. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed and the remaining parts of the judgment below are concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, without examining the remaining grounds of appeal, the judgment of the court below is reversed and 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.

Justices Lee Dong-won

Justices Lee In-bok

Note 3rd Justice Ko Young-young

Justices Kim Gin-young