[1] The principle of interpreting penal provisions in accordance with the principle of no punishment without law

[2] Meaning of “the same as Articles 257 through 259” among the provisions of Article 262 of the Criminal Code / In the case of a special assault or injury, whether it shall be interpreted that a punishment shall be punished according to the precedent under Article 257(1) of the Criminal Code, such as the previous establishment of Article 258-2 of the Criminal Code (affirmative)

[3] Reasons for stating the applicable provisions in the indictment / In interpreting and determining whether the applicable provisions in the indictment shall apply mutatis mutandis, which is not charged, and whether the court is bound by the applicable provisions in the indictment of the prosecutor (negative)

[1] The principle of no punishment without the law requires that crimes and punishments be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the state penal authority. In light of such purport, the interpretation of penal provisions must be strict, and the interpretation of the explicit penal provisions to excessively expand or analogically interpret the meaning of the express penal provisions to the disadvantage of the defendant is contrary to the principle of no punishment without the law and is not allowed. However, the interpretation of penal provisions does not exclude teleological interpretation considering the legislative intent, purpose, legislative history, etc. of the law,

[2] Articles 262 and 261 of the Criminal Code, which are the applicable provisions of the crime of causing special assault, existed after the enactment of the Criminal Code. Before the establishment of the crime of causing special assault under Article 258-2 of the Criminal Code, the meaning of “the same as those of Articles 257 through 259 shall apply in the case of causing death or injury to another person by committing the crime under the preceding two Articles” under Article 262 of the Criminal Code refers to “the same as those of Articles 257 through 259 shall apply in the case of causing death or injury to another person by committing the crime under Article 260 (Assault and Continuance), serious injury, or death by committing the crime under Article 257 of the Criminal Code, and Article 258 of the Criminal Code in the case of serious injury, and Article 259 of the Criminal Code in the case of death is interpreted and applied in accordance with the precedent of suspension of qualifications for not more than one year under Article 257(1) of the Criminal Code.”

However, as a result of the amendment of the Criminal Act on January 6, 2016, the provision that “the same shall apply to Articles 257 through 259” under Article 262 of the Criminal Act is included in Article 258-2 of the Criminal Act, and in the case of a bodily injury resulting from a special assault, there is room to interpret that a punishment should be imposed in accordance with Article 258-2(1) of the Criminal Act, which is a special injury. In accordance with such interpretation, the statutory penalty for a special injury resulting from a crime of a bodily injury resulting from a crime of a bodily injury resulting from the increase of the statutory penalty above that of Article 257(1) of the Criminal Act, which is the case of Article 258-2(1) of the Criminal Act.

However, in light of the legal principles on the interpretation of the penal provisions and the progress of the amendment of the Punishment of Violences, etc. Act, the details and purpose of the establishment of Article 258-2 of the Criminal Act, the history and structure of Article 262 of the Criminal Act, and the text and structure of Article 258-2 of the Criminal Act, it is reasonable to interpret that the person injured by special assault is punished according to the precedent of Article 257(1) of the Criminal Act as in the previous case,

[3] The indictment shall contain the applicable provisions of law along with the name of the crime and the facts charged (Article 254 of the Criminal Procedure Act). However, the reasons why the applicable provisions of law are stated in the indictment shall be clearly evaluated as to the facts charged so that assistance can be made in the determination of the scope of the prosecution, and the interpretation and application of the law are merely to guarantee the defendant's right of defense, and the issue of interpretation and application of the law shall be the exclusive authority of the court. Thus, in interpreting and judging which punishment provisions which are not the facts charged

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act / [2] Articles 11 and 12(1) of the Constitution of the Republic of Korea, Articles 1(1), 257, 258, 258-2, 259, 260, 261, 262, 283(1), 324, and 366 of the Criminal Act, Articles 258(3), and 324(1) of the former Criminal Act (Amended by Act No. 13719, Jan. 6, 2016); Article 258(3) of the former Criminal Act; Article 324(1) of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); Article 258(1) and (2) of the former Punishment of Violences, etc. Act (Amended by Act No. 12861, Mar. 1, 2016, current Act

[1] Supreme Court Decision 2002Do2363 Decided January 10, 2003 (Gong2003Sang, 663) Supreme Court Decision 2017Do7687 Decided September 21, 2017 (Gong2017Ha, 2047) / [3] Supreme Court Decision 2005Do9743 Decided April 14, 2006 (Gong2006Sang, 842)

Defendant

Defendant

Attorney Kim Bo-tae

Seoul Eastern District Court Decision 2017No1618 decided January 26, 2018

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

The grounds of appeal are examined.

1. A. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of a penal provision shall be strict, and the interpretation of a penal provision shall be excessively expanded or analogically interpreted to the disadvantage of the defendant is in violation of the principle of no punishment without the law (see, e.g., Supreme Court Decision 2017Do7687, Sept. 21, 2017). However, the interpretation of a penal provision does not exclude a teleological interpretation that takes into account the legislative intent, purpose, legislative history, etc. of the law, unless it goes beyond the ordinary meaning of the legal text (see Supreme Court Decision 2002Do2363, Jan. 10,

B. Articles 262 and 261 of the Criminal Act, which are the applicable provisions of the crime of causing special assault, existed after the enactment of the Criminal Act. Before the establishment of the crime of causing special assault under Article 258-2 of the Criminal Act, the meaning of “the same as those of Articles 257 through 259 shall apply in the case of causing death or injury to another person by committing the crime under the preceding two Articles” in Article 262 of the Criminal Act refers to “the same as those of Articles 257 through 259 shall apply in the case of death, serious injury, or death by committing the crime under Article 260 (Assault) or 261 (special assault) of the Criminal Act. As a result, the meaning of “the crime under Article 257 of the Criminal Act in the case of causing serious injury,” Article 258 of the Criminal Act in the case of death, and Article 259 of the Criminal Act in the case of death, the statutory penalty for causing special assault was interpreted and applied as equivalent to suspension of qualifications for not more than 17 years” under Article 257(1) of the Criminal Act.

However, as a result of the amendment of the Criminal Act on January 6, 2016, the provision that “the same shall apply to Articles 257 through 259” under Article 262 of the Criminal Act is included in Article 258-2 of the Criminal Act, and in the case of a bodily injury resulting from special assault, there is room to interpret that the punishment should be imposed in accordance with Article 258-2(1) of the Criminal Act, which is a special injury. In accordance with such interpretation, the statutory penalty for the crime of special assault is “a person who has been punished for not less than one year but not more than ten years” under Article 258-2(1) of the Criminal Act, thereby raising more than that of Article 257(1) of the Criminal Act as in the past.

C. However, considering the aforementioned legal principles as to the interpretation of the penal provisions as seen earlier and the progress of the amendment of the Punishment of Violences, etc. Act as follows, the details and purpose of the amendment, the history and structure of Article 262 of the Criminal Act, and the text and structure of Article 258-2 of the Criminal Act, it is reasonable to interpret that the person injured by a special assault should be punished by the precedent of Article 257(1) of the Criminal Act as in the previous case, notwithstanding the establishment of Article 258-2

(1) On September 24, 2015, the Constitutional Court en banc Decision 201Hun-Ba14, en banc Decision 205Hun-Ba14, en banc Decision 201, en banc Decision 201Hun-Ba14, en banc Decision 201, en banc Decision 306Hun-Ba1, en banc Decision 201, en banc Decision 206Hun-Ba1, en banc Decision 406, en banc Decision 201, en banc Decision 206Hun-Ba1, en banc Decision 306, en banc Decision 201, en banc Decision 201Hun-Ba1, en banc Decision 306, en banc Decision 201, en banc Decision 306Hun-Ba1, en banc Decision 406, en banc Decision 201, en banc Decision 406, en banc Decision 406, en banc Decision unconstitutional, en banc Decision 516, en banc Decision unconstitutional.

(2) Accordingly, in order to improve some provisions of the former Punishment of Violences Act and prevent the gap of punishment by incorporating some crimes into the Criminal Act at the same time, and to ensure the legitimacy and balance in the punishment system, Article 3(1) of the former Punishment of Violences Act was wholly deleted, and Article 3(1) of the former Punishment of Violences Act was newly inserted as “special injury crime” under Article 258-2 of the Criminal Act. As a result, the statutory punishment is lower than “a term of imprisonment of not less than one year but not more than ten years” under the former Punishment of Violences Act, and the statutory punishment for the crime of serious injury was adjusted to “a imprisonment of not less than two years and not more than 15 years” from “a term of imprisonment for a term of not more than two years” to “a term of imprisonment for a term of not more than five years”, and the crime of coercion was amended to “a term of imprisonment for not more than five years” to “a fine not more than five years” or a fine not exceeding three million won.

(3) On the other hand, Article 262 of the Criminal Act maintains the same language and structure from the date of the enactment of the Criminal Act to the present, and Article 262 of the Criminal Act has some legislative problems with regard to the past, but it has been interpreted as punishing the crime of assault and bodily injury resulting from special assault equivalent to the examples of the crime of bodily injury resulting from an intentional crime and the crime of bodily injury resulting from an intentional crime, and punishing the crime of assault and bodily injury resulting from special assault according to the same statutory punishment without considering the difference in illegality between the crime of assault and bodily injury resulting from special assault and the crime of bodily injury resulting from an amendment of the Criminal Act on January 6, 2016.

(4) In such a situation, if a new crime of special injury under Article 258-2 of the Criminal Act is to be punished pursuant to the precedent of special injury under Articles 262 and 261 of the Criminal Act solely on the ground that it is possible to punish the crime of special injury under Article 261 of the Criminal Act, the punishment can be imposed pursuant to the precedent of the crime of special injury under Article 258-2(1) of the Criminal Act, it does not conform to the purport and purpose of the above amendment of the Criminal Act, which provides that, due to the difference in statutory punishment, a uniform sentence of imprisonment shall be imposed on minor matters that could have been selected as a fine due to the difference in statutory punishment, thereby maintaining legitimacy and balance in the criminal system. In addition, there is a concern that it may be contrary to the principle of liability under the criminal law, which provides that the punishment shall be proportional between seriousness of the punishment and the offender’

2. Meanwhile, the indictment shall contain the applicable provisions of law along with the name of the crime and the facts charged (Article 254 of the Criminal Procedure Act). However, the reasons why the applicable provisions of law are stated in the indictment are clearly stated in the indictment are to assist the court in determining the scope of the prosecution by clarifying the legal evaluation of the facts charged, and to guarantee the defendant's right of defense (Supreme Court Decision 2005Do9743 Decided April 14, 2006, etc.). Since the interpretation and application of the law shall be the discretion of the court, the court shall not be bound by the applicable provisions of law stated in the indictment of the prosecutor in its interpretation and judgment as to which the provisions of punishment

3. A. Nevertheless, for the following reasons, the lower court reversed the first instance judgment that selected a fine pursuant to Article 257(1) of the Criminal Act as to the charges of the injury resulting from special assault of this case, stating that “the Defendant, while driving a car while driving the car, had the bicycle of the victim, who was the victim getting on and getting on the car, rapidly stopped and stopped in the way of the car and got off the ground floor to avoid collision, thereby assaulting the victim by using a dangerous object and causing injury requiring approximately two weeks medical treatment.” The lower court decided to punish the charges of the injury resulting from special assault of this case in accordance with the precedent of Article 258-2 of the Criminal Act, and decided to punish the Defendant

(1) Article 262 of the Criminal Act does not exclude the application of Article 258-2 of the Criminal Act, but does not seem to have any unreasonable or imbalance in the penal system even if the crime of bodily injury resulting from special assault is punished in the same manner as the crime of special injury.

(2) In a case where a prosecutor was indicted for committing the instant facts charged pursuant to Article 257(1) of the Criminal Act, not Article 257(1) of the Criminal Act, but Article 258-2(1) of the same Act, the prosecutor cannot be punished by applying Article 257(1) of the Criminal Act without the prosecutor’

B. The lower judgment erred by misapprehending the legal doctrine on the interpretation of Article 262 of the Criminal Act and the binding force of the applicable provisions of indictment, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, 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 a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)