The case reversing the part of the judgment of the court below in violation of the Punishment of Violences, etc. Act (at night group, deadly weapon, etc.) due to the Constitutional Court's decision of unconstitutionality on the part of "a person who committed a crime under Article 283 (1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous article at night."

[1] Article 325 of the Criminal Procedure Act, Article 47 (2) of the Constitutional Court Act, Article 3 (2) of the Punishment of Violences, etc. Act

Constitutional Court en banc Order 2003Hun-Ga12 Decided December 16, 2004 (Hun-Gong100, 51)

A

Defendant

Attorney B

Busan District Court Decision 2004No3379 delivered on December 16, 2004

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

According to the records, the court below affirmed the judgment of the court of first instance that convicted the Defendant of the violation of the Punishment of Violences, etc. Act (at night group, deadly weapon, etc.), which cited knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife

However, in Article 3 (2) of the Punishment of Violences, etc. Act applied by the court below, the part of "a person who committed a crime under Article 283 (1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous articles with him at night, was found to be in violation of the Constitution by the Constitutional Court en banc Order 2003Hun-Ga12 Decided December 16, 2004. In a case where the Act on Punishment and the Act retroactively becomes void due to the decision of unconstitutionality, the defendant's case prosecuted by applying the pertinent provision shall be deemed to fall under the case where the crime is not committed (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 97Do842, Nov. 14, 1997). Of the judgment of the court below, the part of the crime of violation of the Punishment of Violences, etc. Act (collectively, deadly weapons, etc.) cannot be maintained.

Therefore, among the judgment of the court below, the part of the above violation of the Punishment of Violences, etc. Act (the crime of intimidation at night, deadly weapons, etc.) shall be reversed. Since the above crime and the remaining crime of the defendant shall be sentenced to one punishment in concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It

Justices Jack-dam (Presiding Justice)