(영문) 대법원 2015.5.14. 선고 2015도4062 판결

Of the facts charged in the instant case, the lower court applied Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) and Article 329 of the Criminal Act with respect to the theft of cargo vehicles or light oil over four occasions [2014 high-class 239] among the facts charged in the instant case. However, in the instant case, the Constitutional Court declared that Article 329 of the Criminal Act (amended by Act No. 10210, Mar. 31, 2010) and Article 363 of the Criminal Act (hereinafter “Special Crimes Aggravated Punishment Act”) and Article 362(1) of the Criminal Act (hereinafter “Special Crimes Aggravated Punishment Act”), the portion concerning the prosecution for the crime under Article 362(1) of the Criminal Act, which did not apply to Article 363 of the Criminal Act, constitutes a violation of Article 47 of the Criminal Act, and thus, is retroactively invalidated.

Nevertheless, the lower court found the Defendant guilty of the crime of larceny on the four occasions among the facts charged in the instant case. As such, the part concerning the facts charged in this part of the lower judgment cannot be maintained as it is.

The part of the judgment of the court below concerning the same facts charged should be reversed. Since the court below rendered a single sentence by deeming that this part and the remaining facts charged constitute a single comprehensive crime or concurrent crime under the former part of Article 37 of the Criminal Act, the entire judgment of the court below should be reversed. Therefore, 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