2016Do1067 Violation of the Punishment of Violences, etc. Act (a collective injury, a deadly weapon, etc.)

B

Defendant

Attorney J

Supreme Court Decision 2014Do13797 Decided December 24, 2014

Daegu District Court Decision 2015No69 Decided December 24, 2015

April 28, 2016

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

Judgment ex officio is made.

1. Act which was committed in the past according to the change of the legal ideology which was the basis of the enactment of penal statutes;

The evaluation has changed and recognized it as a crime, and the punishment itself has been unfair; or

section 1(2) of the Criminal Code is amended or amended in the reflective consideration that an excessive punishment has been imposed.

Pursuant to paragraph (1), new law shall be applied (Supreme Court Decision 2009Do12930 Decided March 11, 2010, Supreme Court Decision 2009Do12930, Supreme Court Decision 20

Seoul High Court Decision 2013Do4862, 2013 Jeondo101 decided July 11, 2013

2. A. After remanding, the lower court: (a) injury inflicted on the victim by carrying a kitchen knife, which is dangerous by the Defendant.

The former Punishment of Violences, etc. Act (amended by Act No. 1251, Apr. 2, 2014)

12. 30 No. 3 of the former Punishment of Violences Act

Article 2(1) and 2(1)3 of the Criminal Act, and Article 257(1) of the Criminal Act shall apply to a first trial which is found guilty.

The decision was maintained.

(b) Article 3 (1) of the former Punishment of Violences Act means an organization or group by force or by force;

A person who commits any of the crimes listed in Article 2(1) or with deadly weapons by showing the power of a group under the disguisedly;

A person who commits a crime by carrying other dangerous articles shall be punished in accordance with the subparagraphs of Article 2 (1).

(c)"A person who habitually commits any of the following offences" in paragraph 1 of Article 2 shall be construed as "a person who habitually commits:

Article 257(1) of the Criminal Act provides that "A punishment shall be imposed in accordance with the classification thereof."

The Act on January 6, 2016 provided that the person who committed the crime shall be punished by imprisonment for a limited term of at least three years.

Article 3(1) of the Punishment of Violences, etc. Act amended and enforced by Act No. 13718 shall be deleted.

Article 258-2 (Special Injury) is newly established in the Criminal Code amended and enforced by Act No. 13719 on the same day.

§ 257. The threat of collective force or by carrying dangerous articles in paragraph 1 shall be deemed to be a threat of collective force or by carrying

When the crime as referred to in paragraph (1) or (2) is committed, the offender shall be punished by imprisonment for not less than one year but not more than ten years.

was determined.

As such, the former Punishment of Violence defined the aggravated elements of Article 257(1) of the Criminal Act

In lieu of deletion of Article 3 (1) of the Punishment Act, a new provision of Article 258-2 (1) of the Criminal Act is established, and such statutory penalty is imposed.

The provision of Article 3(1) of the former Punishment of Violences is lower than that of Article 3(1) of the same Act.

Considering the general risk of the individual crime, the details of the individual crime and the specific form of action;

Although the degree of infringement of legal interests is very diverse, it shall be uniformly aggravated by imprisonment for not less than three years.

It shall be deemed that the previous penal provisions are too excessive and that they are anti-sexual measures from the point of view.

Since this is a matter of course, it is more severe than the old law due to the change of the law after the crime under Article 1 (2) of the Criminal Code.

‘at the time'.

As to the facts charged of this case, the Gu width of the act-making corporation pursuant to Article 1 (2) of the Criminal Act

Article 258-2 (1) of the Criminal Code, a new corporation, shall not be subject to aggravated punishment pursuant to the provisions of the Act on the Punishment of Forced Acts.

Since it can be punished only, the judgment of the court below on the premise of applying the provisions of the former Punishment of Violences Act.

No longer can no longer be maintained.

3. Therefore, without examining the grounds of appeal, we reverse the judgment below and the case is remanded again.

All participating Justices' assent that the case shall be remanded to the court below for a trial and determination.

(2) It is so decided as per Disposition.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok