2019Do15167 Telecommunications

Defendant

Defendant

Seoul Northern District Court Decision 2019No1037 Decided September 26, 2019

December 24, 2019

The appeal is dismissed.

The grounds of appeal are examined.

1. Details of the instant case

A. The Defendant was indicted on the charge that he followed the last order of October 1996, the first order of November 1996, the first order of March 1997, and the first order of June 197. The first instance court sentenced the suspended sentence of two years on July 8, 199 and sentenced the suspended sentence of two years on July 8, 199 (hereinafter referred to as the “the instant judgment on retrial”), the Defendant appealed, but all of the appeals were dismissed, and the instant judgment on retrial became final and conclusive.

B. On October 30, 2008, the Constitutional Court decided that Article 241 of the former Criminal Act (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same) does not violate the Constitution, but decided on February 26, 2015 that Article 241 of the former Criminal Act violates the Constitution (hereinafter referred to as “instant decision of unconstitutionality”).

C. After the decision of unconstitutionality of this case was rendered, the Defendant asserted that there exists a reason for reexamination as stipulated in Article 47(4) of the Constitutional Court Act in the decision subject to a retrial. The first instance court rendered a decision of unconstitutionality, and subsequently tried again at a court level, and rendered a judgment of acquittal on the ground that Article 241 of the former Criminal Act, which had existed as of the date of the previous decision of constitutionality in accordance with the decision of unconstitutionality, has retroactively lost its effect on the day following the date of the previous decision of constitutionality, and thus, Article 326 subparag. 4 of the Criminal Procedure Act was repealed due to the abolition of a sentence following

D. The lower court dismissed the Defendant’s appeal, and the Defendant appealed to the effect that the decision of unconstitutionality regarding Article 241 of the former Criminal Act should be pronounced not guilty on the facts charged in the instant case.

2. Judgment of the Supreme Court

As to the facts charged of this case, the lower court did not err in its judgment that maintained the first deliberation judgment which rendered a judgment of acquittal as provided by Article 326 subparag. 4 of the Criminal Procedure Act, and thus, the Defendant’s ground of appeal cannot be accepted.

A. The proviso of Article 47(2) of the former Constitutional Court Act (amended by Act No. 12597, May 20, 2014) stipulates that the Act or the provisions of the Act on Punishment, which was determined as unconstitutional, lose its effect retroactively, and did not restrict its retroactive effect. However, the proviso of Article 47(3) of the amended Constitutional Court Act, supra, limits retroactive effect by setting the retroactive effect retroactively as of the day following the date on which the decision was made, in cases where a previous case was decided to be constitutional with respect to the pertinent Act or the provisions of the Act. Meanwhile, Article 326 subparag. 4 of the Criminal Procedure Act provides that “when a sentence is repealed due to the amendment of the Acts and subordinate statutes after the crime,” a judgment of acquittal shall be rendered.

Therefore, in a case where the provision of a law or a provision applicable to a criminal act prior to the date of the previous decision of constitutionality became final and conclusive and retroactively loses its effect on the day following the date of the previous decision of constitutionality pursuant to the proviso of Article 47(3) of the Constitutional Court Act, the same applies to the case where the provision of a law or a provision of a law in force at the time of the criminal act was repealed thereafter, and thus, the court should render

B. Examining the facts in light of the aforementioned legal principles, the first instance court, which tried to judge the facts charged in the instant case, shall render a judgment of acquittal pursuant to Article 326 subparag. 4 of the Criminal Procedure Act, because the day of the crime indicated in the facts charged in the instant case is prior to the date of the previous decision of constitutionality, and Article 241 of the former Criminal Act, becomes retroactively effective on October 31, 2008, following the date of the previous decision of constitutionality due to the decision of unconstitutionality of the instant case, and thus, the first instance court, which tried to judge the facts charged in the instant case, shall render a judgment of acquittal pursuant to Article 326 subparag. 4 of

16. The en banc Decision 2010Do5986 Decided April 16, 201

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Justices Kim Jae-in

Justices Min You-sook of the District Court

Justices Lee Jae-hwan