2015Do12462 Violation of the Punishment of Violences, etc. Act (a violation of the Act on the Punishment of Violences, etc., Bodily Injury to a

Violation of the Punishment of Violences, etc. Act (a collective action, threat to the existence of a deadly weapon);

Pressure, Violation of the Control of Firearms, Swords, Explosives, etc. Act

A

Pacciny arsen

Attorney T.

Changwon District Court Decision 2015No1038 Decided July 22, 2015

November 27, 2015

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

The grounds of appeal are examined ex officio prior to examining them.

Where there is no change in the punishment even after the change in the law after the crime has been committed, the method of action shall be applied in accordance with Article 1 (1) of the Criminal Act.

Of the facts charged in the instant case, the lower court convicted the Defendant by applying Articles 3(1) and 2(1)2 of the Punishment of Violences, etc. Act and Article 283(2) and (1) of the Criminal Act with regard to intimidation to carry dangerous goods on or around June 2014 (hereinafter “The Punishment of Violences Act”). However, the lower court did not err by misapprehending the relevant provisions of the former Punishment of Violences Act, since the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; hereinafter “former Punishment of Violences”) which was enforced at the time of the said crime, was amended by Act No. 12896, Dec. 30, 2014; hereinafter “former Punishment of Violences”) and there was no change in the sentence in comparison with Article 3(1) and Article 2(1)2 of the same Act and Article 283(2) of the Criminal Act. However, the lower court did not have any influence on the judgment.

However, Article 3(1) of the former Punishment of Violences Act provides that "a person who commits a crime under Article 283(2) of the Criminal Act by carrying a deadly weapon or other dangerous object with him/her (hereinafter referred to as "the provisions of the Punishment of Violences Act") shall be punished by imprisonment with prison labor for not less than two years heavier than the statutory penalty prescribed in Article 283(2) of the Criminal Act for a person who threatens his/her or his/her lineal ascendant by carrying a deadly weapon or other dangerous object. Meanwhile, Article 284 of the Criminal Act provides that a person who commits a crime of intimidation under Article 283(2) of the Criminal Act by carrying a dangerous object shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 10 million won, and that "a person who commits a crime of intimidation under Article 283(2) of the Criminal Act by carrying a deadly weapon or other dangerous object with him/her and Article 284

Thus, the provisions of the Punishment of Violence Act are special in addition to the elements of Article 284 of the Criminal Act.

As a result, the legal application of a single aggravated constituent element is entrusted only to the prosecutor’s discretion without entirely adding a description of the aggravated constituent element, which leads to confusion in the application of the law. Moreover, unlike the punishment prescribed in Article 284 of the Criminal Act, the statutory penalty is excluded from the punishment, and the maximum and minimum penalty is aggravated, and the system’s legitimacy and balance are not fully satisfied. As such, it may result in serious imbalance of punishment depending on which provision is applied at the discretion of prosecution, and thus contravenes the basic principles of the Constitution or the principle of equality.

Therefore, in this case, which was prosecuted by applying the provisions of the Punishment of Violences Act to the above charged facts that committed a crime falling under Article 284 of the Criminal Act, the court below should have deliberated and judged on the unconstitutionality of the provisions of the Punishment of Violences Act or the necessity of the amendment of indictment procedure to avoid the unconstitutional outcome of the application thereof, but without examining the above, there is an error of law affecting the conclusion of the judgment by finding the guilty charge of violating the provisions

Accordingly, the part of the judgment of the court below that violated the Punishment of Violence Act due to intimidation of the continuation of carrying dangerous objects should be reversed, and the above part was sentenced to a single punishment on the ground that the court below convicted the defendant and the remaining crimes committed concurrently under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below

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.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok