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(영문) 대전고등법원 2016.03.28 2016노9
폭력행위등처벌에관한법률위반(집단ㆍ흉기등협박)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Seized knife three knife (No. 1, 2, and 3) shall be confiscated.

Reasons

1. Progress of litigation;

A. The lower court found the Defendant guilty of all the charges of this case, including intimidation with a deadly weapon, damage to property, and interference with the performance of special duties, and sentenced the Defendant to two years of imprisonment, and applied Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, and Article 283(1) of the Criminal Act to intimidation with a deadly weapon.

B. The lower court appealed against the Defendant on the grounds of mistake of facts, misunderstanding of legal doctrine, mental and physical disorder, and improper sentencing, and the lower court rejected all of the Defendant’s arguments and dismissed the Defendant’s appeal.

(c)

The Defendant filed a final appeal against the judgment of each party before remanding the case on the grounds of misunderstanding of facts and misunderstanding of legal principles, and the Supreme Court rendered a decision of unconstitutionality on the part concerning a person who committed 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 Act applied by the Constitutional Court on September 24, 2015. Thus, the judgment of the court below which found the Defendant guilty of this part of the charges on the ground that Article 47(3) of the Constitutional Court Act retroactively loses its effect pursuant to the main sentence of Article 47(3) of the Act of the Constitutional Court is unfair, and the remaining crimes in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the entire judgment of each court prior to returning the case shall be reversed, and the case was remanded to the court of each party.

2. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles: The Defendant did not have committed any of the crimes as stated in the judgment of the court below, and in particular, in the case of paragraph (3) of the judgment of the court below, since the police officer’s performance of duties was illegal, the Defendant’s act

B. Mental and physical disorder: The Defendant had no or weak ability to discern things or make decisions at the time of committing the instant crime.

(c)

Sentencing is unfair:

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