(영문) 대법원 2015.12.10. 선고 2015도15841 판결

Of the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as the “Assault Punishment Act”) and Article 283(1) of the Criminal Act to the part that the Defendant carried a deadly weapon or other dangerous object and threatened the victim E.

However, after the judgment of the court below was rendered, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who committed a crime under Article 283 (1) of the Criminal Act by carrying with a deadly weapon or other dangerous articles" in Article 3 (1) of the Punishment of Violences Act applied by the court below (the Constitutional Court Decision 2014HunBa154, Sept. 24, 2015, etc.). Accordingly, the above legal provision was retroactively invalidated pursuant to Article 47 (3) of the Constitutional Court Act. In the event the law or legal provision on punishment becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was indicted by applying the relevant law is not a crime, and thus the judgment of the court below which convicted him of this part of the facts charged cannot be maintained any more.

Of the judgment of the court below, the part on violation of the Punishment of Violences Act (a collective, deadly weapon, etc.) shall be reversed for the same reason. Since the court below maintained the judgment of the court of first instance which sentenced a single punishment on the ground that this part and the remaining criminal facts constitute concurrent crimes under the former part of Article 37 of the Criminal Act,

Therefore, without further proceeding to decide on the remaining 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.