[1] The scope of effect of the Constitutional Court's decision of unconstitutionality

[2] In Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the part concerning the attempted crimes under Article 329 of the Criminal Act, the part concerning the attempted crimes under Article 329 of the Criminal Act, and the part concerning "acquisition" under Article 362(1) of the Criminal Act among Article 363 of the Criminal Act, whether the effect of the Constitutional Court's decision of unconstitutionality on Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes reaches Article 5-

[1] Article 47 of the Constitutional Court Act / [2] Articles 10 and 11(1) of the Constitution of the Republic of Korea; Article 5-4(1), (4), and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 329, 332, 342, 362(1), and 363 of the Criminal Act; Article 47 of the Constitutional Court Act

[1] Supreme Court en banc Decision 2009Do9576 Decided April 14, 201 / [2] Constitutional Court en banc Decision 2014Hun-Ga16, 19, and 23 Decided February 26, 2015 (Hun-Gong221, 346)

Defendant

Defendant and the respondent for attachment order

Attorney Jin-soo

Gwangju High Court Decision 2014No301, 2014No70 decided February 3, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. Defendant case

A. The Constitutional Court’s decision of unconstitutionality under Article 47 of the Constitutional Court Act is binding only on the law or provision of the law that is subject to it, and barring any special circumstance, it does not extend to other law or provision of the law (see Supreme Court Decision 2009Do9576, Apr. 14, 201). The Constitutional Court’s decision in the case “2014Hun-Ga16, 19, 23 (Consolidation)” (amended by Act No. 10210, Mar. 31, 2010; hereinafter “Special Crimes Aggravated Punishment Act”) and thus, cannot be seen as having violated Article 329 of the Criminal Act, Article 329, Article 329 of the Criminal Act, Article 363(4) of the Criminal Act, and Article 363(1) of the Criminal Act, which provides that “The Constitutional Court’s decision of unconstitutionality shall not be deemed to have violated the principle of proportionality and Article 362(1)6(4) of the Criminal Act.”

B. According to the records, the defendant and the respondent for an attachment order (hereinafter referred to as "defendant") appealed on the part concerning the defendant's case in the judgment of the court of first instance, and asserted only unfair sentencing as the grounds for appeal. In this case, the argument that the court below erred in determining a separate punishment with respect to the combined case does not constitute a legitimate ground for appeal. Furthermore, the judgment below did not err in the misapprehension of the legal principle

C. Furthermore, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, and thus, in this case where a more minor sentence is imposed on the defendant, the argument that the sentence is too unreasonable cannot be a legitimate ground for appeal.

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

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to dismiss the defendant's appeal regarding the request for attachment order, and there is no violation of law such as ordering the defendant to attach an electronic tracking device unfairly, as alleged in the ground of appeal

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)