The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

Judgment on the grounds of appeal shall be made ex officio.

The lower court upheld the first instance judgment that applied Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Articles 363 and 30 of the Criminal Act to the facts charged in the instant case.

However, on February 26, 2015, the Constitutional Court rendered a decision that the part concerning “acquisition” under Article 362(1) of the Criminal Act among Article 363 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) pursuant to Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes should be unconstitutional (the Constitutional Court rendered a decision that the part concerning “acquisition” under Article 362(1) of the Criminal Act should be unconstitutional (the Constitutional Court rendered a decision 2014HunGa16, 19, 23 (Merger) as of February 26, 2015).

As such, in a case where the penal law or legal provision becomes retroactively effective due to the decision of unconstitutionality, the facts charged charged by applying the pertinent provision constitutes a crime, and thus, the judgment of the court below cannot be maintained as it is, since it constitutes a crime.

(1) The judgment of the court of first instance, which maintained the original trial, stated only the applicable provisions of Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 363 of the Criminal Act, but also applied Article 362(1) of the Criminal Act in light of criminal facts. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.