(영문) 대법원 2015.12.24. 선고 2015도14723 판결

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 Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as “Assault Punishment Act”) and Article 283(1) of the Criminal Act to the part that the Defendant threatened by carrying a deadly weapon or other dangerous articles.

However, after the judgment of the court below was rendered, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who committed a crime under Article 283 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles with a deadly weapon or other dangerous articles (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015). Accordingly, the above provision of the law became retroactively null and void pursuant to Article 47 (3) of the Constitutional Court Act. In a case where the law or the law provision on punishment becomes retroactively null and void due to the decision of unconstitutionality, the case which was prosecuted by applying the pertinent provision of the law is not a crime, and thus, the judgment of the court below convicting the defendant of this part of the facts charged became null and void.

Furthermore, the lower court’s judgment should be reversed in its entirety, inasmuch as the violation of the Punishment of Violences Act (Intimidation by groups, deadly weapons, etc.) and the remaining guilty parts of the lower judgment are concurrent crimes under the former part of Article 37 of the Criminal

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 on the bench.