2015Do15745 A. Property damage

(b) Injury;

(c) Violation of the Punishment of Violences, etc. Act;

(d) Special obstruction of performance;

A

Prosecutor

Attorney Q Q (Korean Office Line)

Chuncheon District Court Decision 2015No452 Decided September 24, 2015

December 10, 2015

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

The prosecutor's grounds of appeal are examined.

Of the facts charged in the instant case, the lower court convicted the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as “Assault Punishment Act”) and Article 260(1) of the Criminal Act with regard to the part that the Defendant committed assault against the victim I by carrying a smoking instrument or other dangerous articles.

However, the Constitutional Court rendered a decision of unconstitutionality as to the part concerning "a person who commits a crime under Article 260 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles with a deadly weapon or other dangerous articles in Article 3 (1) of the Punishment of Violences Act applied by the court below (the Constitutional Court Order 2014HunBa154, Sept. 24, 2015). Accordingly, the above provision of the law became retroactively null and void pursuant to Article 47 (3) of the Constitutional Court Act. In a case where the law or legal provision on punishment becomes retroactively null and void due to the decision of unconstitutionality, the case which was prosecuted by applying the pertinent provision of the law is not a crime, and thus, the judgment below convicting the Defendant of this part of the facts charged became null and void.

Of the judgment of the court below, the part on violation of the Punishment of Violences Act (Assault such as group, deadly weapon, etc.) shall be reversed for the same reason. Since the court below deemed that this part and the remaining criminal facts constitute concurrent crimes under the former part of Article 37 of the Criminal Act and rendered a single sentence, the judgment of the court below shall be reversed in its entirety. Therefore, 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

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok