beta
Text
The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.
Reasons
Judgment ex officio is made.
Where there is no change in the punishment even after the change in the law after the crime has been committed, the method of action shall be applied in accordance with Article 1 (1) of the Criminal Act.
The lower court convicted the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act with respect to the facts charged in the instant case that the Defendant by carrying dangerous articles on October 5, 2014, which led to intimidation. However, the lower court was amended by Act No. 7891, Mar. 24, 2006; and was amended by Act No. 12896, Dec. 30, 2014;
c. The term “former Punishment of Violence Act” (hereinafter referred to as “former Punishment of Violences Act”).
The lower court should have applied the corresponding provision of the former Punishment of Violences Act inasmuch as there is no change in punishment compared to Articles 3(1) and 2(1)1 of the Act, and Article 283(1) of the Criminal Act. However, the lower court did not have affected the conclusion of the judgment. However, on September 24, 2015, the lower court rendered a decision that “the part concerning a person who committed a crime under Article 283(1) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3(1) of the former Punishment of Violences Act, and the part concerning a person who committed a crime under Article 283(1) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3(1) of the Punishment of Violences Act, all of which are unconstitutional (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015).
In a case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the pertinent provision constitutes a crime, and thus, it constitutes the case in question.