In lieu of deletion of Article 3(1) of the former Punishment of Violences, etc. Act, which provides for an aggravated constituent element under Article 257(2) of the Criminal Act, the establishment of the same constituent element under Article 258-2(1) of the Criminal Act, and the provision of statutory penalty under Article 3(1) of the former Punishment of Violences, etc. Act is more severe than that of the previous penal provision, whether the act constitutes “when a sentence is heavier than that of the former Act due to a change in the Act after a crime” under Article 1(2) of the Criminal Act (affirmative)

Articles 1(2), 257(1) and (2), and 258-2(1) of the Criminal Act; Articles 2(1)3 (current Deletion) and 3(1) (current Deletion) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016);

Defendant

Defendant

Attorney Kim Sang-sung

Chuncheon District Court Decision 2015No475 decided November 5, 2015

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

Judgment ex officio is made.

1. In cases where the evaluation of acts deemed a crime committed in the past according to the changes in the legal ideology, which served as the reason for the enactment of penal statutes, has changed and punished them as a crime, in itself, or where statutes were amended or amended in light of anti-discrimination that there was an excessive punishment, the new law shall be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

2. A. According to the reasoning of the lower judgment, the lower court affirmed the first instance judgment convicting the Defendant of the instant charges by applying Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”) and Article 257(2) of the Criminal Act with regard to the act of causing bodily injury to the victim, who is a lineal ascendant, by carrying dangerous articles among the instant charges.

B. Article 3(1) of the former Punishment of Violences Act provides that “Any person who commits a crime under any subparagraph of Article 2(1) by force of an organization or a group, or by showing a power under the pretending to an organization or a group, or who commits a crime by carrying with himself a deadly weapon or other dangerous articles, shall be punished in accordance with any of the subparagraphs of Article 2(1).” Article 2(1) of the same Act provides that “A person who habitually commits a crime under any of the following subparagraphs shall be punished in accordance with the following subparagraphs.” Article 2(1) of the same Act provides that “A person who habitually commits a crime shall be punished in accordance with Article 257(1) of the Criminal Act and Article 257(2) of the Criminal Act (injury to a lineal injury) shall be punished by imprisonment for a limited term of not less than three years. However, the Act on the Punishment of Violences, etc., amended by Act No. 13718, Jan. 6, 2016; and Article 137(1) or 5-2 of the Criminal Act newly enacted or amended by Act.

As can be seen, Article 257(2) of the Criminal Act, instead of deleting Article 3(1) of the former Punishment of Violences Act, which provides for the aggravated elements of Article 257(2) of the Criminal Act, is newly established under Article 258-2(1) of the Criminal Act, and Article 3(1) of the former Punishment of Violences Act provides that the statutory penalty is lower than that of the former Punishment of Violences Act, even when considering the general risk with which the above aggravated elements are marked, it shall be deemed that the previous penal provision that uniformly punishs an aggravated punishment by imprisonment for a limited term of not less than three years is excessive, even though the circumstances leading up to the individual crime, specific form of act, and the degree of infringement of legal interest are diverse. Thus, it constitutes “when the punishment is heavier than that of the former Act due to the amendment after the crime” under Article 1(2)

Therefore, among the facts charged in this case, the act of inflicting bodily injury on the victim who is a lineal ascendant by carrying dangerous articles in accordance with Article 1(2) of the Criminal Act cannot be subject to aggravated punishment pursuant to Article 1(2) of the former Punishment of Violences Act, and can only be punished pursuant to Article 258-2(1) of the Criminal Act, a new corporation. Thus, the judgment of the court below based on the application of the former Punishment of Violences Act

C. Meanwhile, the first instance court, maintained by the lower court, rendered a single sentence on the ground that the part with the above grounds for reversal and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, and the lower judgment should be reversed in its entirety.

3. 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 Poe-young (Presiding Justice)