The judgment below

The part against the Defendants is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

(1) In applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter the same) and Articles 3(1) and 2(1)1 of the same Act, Articles 366, 31(1), and 30 of the Criminal Act, the first instance court convicted the Defendants of all the charges against the Defendants, including this part of the charges, and maintained the first instance judgment.

However, on September 24, 2015, the Constitutional Court rendered a decision of unconstitutionality as to Article 366 of the former Punishment of Violences, etc. Act, which was applied by the lower court on September 24, 2015 (see, e.g., Constitutional Court Decision 2014HunBa154, Sept. 24, 2015). Accordingly, Article 47(3) of the Constitutional Court Act retroactively lost its validity.

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 of the law constitutes a crime (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007). As such, the judgment of the court below convicting the Defendants of the violation of the Punishment of Violences, etc. Act (a collective dangerous weapon, etc.) among the facts charged against the Defendants, the part of the judgment of the court below convicting the Defendants of the violation of the Punishment of

The Defendants’ ground of appeal pointing this out is with merit.

Meanwhile, among the judgment of the court below, the part of the charge of aiding and abetting the Defendants in violation of the Punishment of Violences, etc. Act (collective weapons, etc. causing destruction and damage, etc. of dangerous weapons) is in concurrent crimes under the former part of Article 37 of the Criminal Act.