2015Do17500 Violation of the Punishment of Violence, etc. Act (a group, deadly weapon, etc. Intimidation)

A

Defendant

Seoul High Court Decision 2015No2327 Decided October 30, 2015

February 18, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Determination as to the assertion of mental disorder in the grounds of appeal

Examining the reasoning of the lower judgment in light of the record, the lower court, based on its reasoning,

The rejection of the argument about the person’s mental disorder is justified and it is so decided as claimed in the grounds of appeal.

2. Ex officio determination

The provisions of Article 1 (2) of the Criminal Act shall be amended by the change of the legal ideology which served as the reason for the enactment of penal statutes.

on the other hand, the evaluation of the act committed as a crime is different, and the act is recognized as a crime and punished.

In itself, the legislation was amended or amended in reflective consideration that there was an unfair or excessive penalty;

In the case of Supreme Court Decision 2003Do2770 Decided October 10, 2003, Supreme Court Decision 2003Do2770 Decided October 10, 2003

December 9, 1997 (see, e.g., Supreme Court Decision 97Do2682, Dec. 9, 1997).

According to the reasoning of the judgment below, the court below held that among the facts charged in this case, the defendant is dangerous.

Punishment of Violence, etc. in the Republic of Korea for the act of threatening a victim who has sustained a knife

JAD (amended by Act No. 13718, Jan. 6, 2016; hereinafter referred to as "former Punishment of Violences Act").

C) In the application of Articles 3(1) and 2(1)2 of this Act, and Article 283(2) of the Criminal Act, the judgment of conviction is guilty.

The judgment of the first instance court was maintained.

Article 3 (1) of the former Punishment of Violences Act shall be construed as a power of an organization or group or an organization or group.

a person who commits any of the crimes referred to in the subparagraphs of Article 2(1) by showing the power under the disguisedly;

A person who commits a crime by carrying an instrument or other dangerous articles shall be punished in accordance with the subparagraphs of Article 2 (1),

A person who habitually commits any of the following crimes shall be punished in accordance with Article 2 (1) and Article 2 (1):

Article 283 of the Criminal Act provides that "any person shall be punished in accordance with the following classification:

The Korean Criminal Code provides that the two paragraphs (2) shall be punished by imprisonment for a limited term of not less than two years.

§ 284. § 283.2 by carrying the threat of collective force or by carrying a dangerous weapon

shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 10 million won.

An aggravated punishment. However, the amendment by Act No. 13718, Jan. 6, 2016, following the pronouncement of the lower judgment, was made.

According to the Act on the Punishment of Violences, etc., Article 3(1) of the former Punishment of Violences, etc. Act

This was deleted.

As such, Article 284 of the Criminal Act is an aggravated constituent element of Article 283(2) of the Criminal Act.

‘Dangerous weapons or other dangerous articles' in Article 3(1) of the Punishment Act and its meaning are the same.

[1] Article 3(1) of the former Punishment of Violences

In the situation where the punishment of violence, etc. is provided low, the old punishment of violence shall be amended by the amendment of the Punishment Act.

The deletion of Article 3(1) of the Punishment Act is a general risk with a mark of the above aggravated constituent elements.

Even if considering the nature of the individual crime, the circumstances leading up to the individual crime, the specific attitude of the act, and the degree of infringement of legal interests

Although it is very diverse, it is necessary to uniformly punish the aggravated punishment by imprisonment for a limited term of not less than two years.

Since the previous penal provisions should be deemed to be anti-sexual measures from excessive punishment regulations, they shall be deemed to be the same.

§ 1(2) of the Criminal Code does not constitute a crime by the amendment of the law after the crime was committed.

When a sentence is more severe than that of the old law.

Thus, among the facts charged of this case, the defendant is carrying a knife, which is dangerous articles and continues to exist.

Provisions of the former Punishment of Violences Act, a corporation at the time of an act of intimidation pursuant to Article 1(2) of the Criminal Act

Since it cannot be punished by aggravating by a court, a commissioner based on the application of the former Punishment of Violences Act.

The judgment of the court of first instance has no longer been maintained.

On the other hand, the court below held that the above part of the charges and the remaining charges against the defendant are Article 37 of the Criminal Act

Since a single sentence was imposed on the grounds that the former concurrent crimes were in the relationship, the above part of the facts charged

In addition, the remainder of the facts charged should be reversed together.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is reversed.

In other words, it is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided by the assent of all participating Justices.

It is so decided as per Disposition.

Justices Kim Jae-sik et al.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok