(영문) 대법원 2015.4.23. 선고 2015도3009 판결

The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1), Articles 330, 331(1), and 342 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) to the facts charged in the instant case. From among Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, Articles 330 and 331(1) of the Criminal Act and the part on the attempted crimes thereof (hereinafter “instant provision”) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment of Specific Crimes”) were habitually punished by imprisonment with prison labor or imprisonment with prison labor, which is a punishment provision for the same aggravated constituent elements, and thus, it is unreasonable to impose more severe punishment than the statutory punishment provided for in Article 332 of the Criminal Act (hereinafter “instant provision”). However, the provision of the Aggravated Punishment of Specific Crimes (hereinafter “Aggravated Punishment of Specific Crimes”), which is the basic principle of punishment for the same aggravated constituent elements, and thus, did not impose any additional statutory punishment on the prosecution.

Therefore, in this case, prosecuted by applying the provisions of the Act on the Aggravated Punishment of Specific Crimes to the above charged facts that constitute a crime falling under the provisions of the Criminal Act, the court below should have deliberated and judged on whether there is a need for modification of indictment procedures, etc. to avoid the constitutional consequences following the application of the provisions of the Aggravated Punishment of Specific Crimes in this case.

Nevertheless, without examining this point, the court below erred by applying the provisions of the Specific Crimes Aggravated Punishment Act to the facts charged in this case, thereby finding the defendant guilty, which affected the conclusion of the judgment.

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 on the bench.