2015Do14226 A. Violation of the Punishment of Violences, etc. Act (collective violence, deadly weapons, etc.)

(b) Injury;

A

Defendant

Jeonju District Court Decision 2015No395 Decided August 28, 2015

December 23, 2015

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

Judgment ex officio is made.

The lower court maintained the first instance court, which convicted of the instant charges by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; Act No. 12896, Dec. 30, 2014; hereinafter the same), Article 2(1)1 of the Criminal Act, Article 260(1) of the Criminal Act.

However, on September 24, 2015, the Constitutional Court rendered a decision that "a person who committed a crime under Article 260 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles with him/her is in violation of the Constitution" under Article 3 (1) of the former Punishment of Violences, etc. Act, and thus, the Constitutional Court rendered a decision that "the person who committed a crime under Article 260 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles" was retroactively invalidated by the main sentence of Article 47 (3) of the Constitutional Court Act as of September 24, 2015.

In a case where the penal law or the legal provision becomes retroactively effective due to the decision of unconstitutionality, the facts charged charged for prosecution by applying the pertinent provision shall not be deemed a crime.

As such, the lower court’s judgment that applied the aforementioned legal provision to the act of assaulting carrying dangerous articles among the facts charged of the instant case became unusable as it is.

Therefore, the part of the judgment of the court below against the Punishment of Violences, etc. (Assaults, deadly weapons, etc.) due to the assault by carrying dangerous articles among the judgment below should be reversed, and the above part shall be sentenced to a single punishment in relation to concurrent crimes with the remaining convicted parts. Accordingly, the judgment of the court below shall be reversed in its entirety.

Therefore, 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.

Supreme Court Decision 200

Justices Lee In-bok

Justices Kim Gin-young

Chief Justice Lee Dong-won