(영문) 대법원 2015.12.23. 선고 2015도17126 판결

Article 1(1) of the Criminal Act shall apply to cases where punishment is significantly changed or where there is no change in punishment even after the change in law after the crime was committed. Of the facts charged in the instant case, the lower court maintained the first instance judgment that found guilty by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act (hereinafter “Assault Punishment Act”), Article 283(1) of the Criminal Act, Article 283(1) of the Criminal Act, and Article 283(1) of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; Act No. 12896, Dec. 30, 2014; hereinafter “former Punishment of Violences Act”) and Article 38(1)1 of the former Punishment of Violences, etc. Act does not affect the conclusion that Article 28(1) and (3) of the Criminal Act were applied.

On September 24, 2015, the Constitutional Court rendered a decision that "the part concerning a person who commits a crime under Article 283 (1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3 (1) of the former Punishment of Violences Act, and the part concerning a person who commits a crime under Article 283 (1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3 (1) of the Punishment of Violences Act (hereinafter "the provision of this case") shall be in violation of the Constitution."

If so, the provision of this case is unconstitutional, pursuant to Article 47 (3) of the Constitutional Court Act.

Retroactively null and void, the charge of intimidation to carry dangerous articles among the facts charged in the instant case, which were indicted by applying the instant provision, constitutes a crime (see, e.g., Supreme Court Decisions 2004Do9037, Apr. 15, 2005; 2014Do5433, Aug. 28, 2014). The judgment below convicting the Defendant of this part of the facts charged became unable to maintain it as it is.

Accordingly, the part of the judgment of the court below against each of the above violations of the Punishment of Violences Act shall be reversed. Since the above crimes and the remaining crimes of the defendant shall be imposed on one of the concurrent crimes under the former part of Article 37 of the Criminal Act, the entire judgment of the court below shall be reversed. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of