2015Do14258 A. Rape

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

(c) Injury;

(d) Violence;

(e) Damage to property;

(f) Violation of the Road Traffic Act;

(g) Performance of official duties by fraudulent means;

2015 Jeondo231(combined) An order to attach an electronic device

A

Defendant and the respondent for attachment order

Attorney AD (National Ship)

Daegu High Court Decision 2014No675, 2014 Jeonno149 (Consolidated) Decided September 3, 2015

November 12, 2015

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

Judgment ex officio is made.

1. Defendant case;

Of the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant and the person who requested to attach an attachment order, by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; Act No. 12896, Dec. 30, 2014; hereinafter referred to as the “former Punishment of Violences Act”) and Article 283(1) 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 the "person who committed a crime under Article 283 (1) (Intimidation) of the Criminal Act by carrying home or other dangerous articles in Article 3 (1) of the former Punishment of Violences Act (the Constitutional Court Order 2014HunBa154, Sept. 24, 2015). Accordingly, the above provision of the law has retroactively lost its effect pursuant to Article 47 (3) of the Constitutional Court Act. In a case where the law or the provision of the law on punishment becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the above law is deemed not a crime, and thus the judgment of the court below guilty of this part of the facts charged cannot be maintained. Accordingly, since this part of the judgment of the court below concerning the violation of the former Punishment of Violences Act (collective, deadly weapons, etc.) and the remaining facts charged constitute concurrent crimes under the former part of Article 37 of the Criminal Act, the court order and the remaining part of the facts charged should be reversed.

2. As to the case of the request for attachment order

As seen above, as long as the part of the judgment of the court below pertaining to the case involving the accused case is reversed, the part concerning the case regarding the application for attachment order which must be tried together with the judgment shall also be reversed.

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, all the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Jae-young

Justices Lee In-bok, Counsel for the appeal

Justices Go Young-young

Justices Lee Dong-won