Whether deletion of Article 2(1) of the former Punishment of Violences, etc. Act, which provided for each aggravated constituent element of Article 324 (Coercive tion), Article 285, Article 283(1) (Habitual Intimidation), Article 264, and Article 260(1) (Habitual Violence) of the Criminal Act, constitutes “when a punishment is more severe than that of the former Act due to a change in the Act after a crime” under Article 1(2) of the Criminal Act (affirmative)

Articles 1(2), 260(1), 283(1), and 285 of the Criminal Act; Articles 264 and 324 of the former Criminal Act (Amended by Act No. 13719, Jan. 6, 2016); Article 2(1) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Article 2(1) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016)

Defendant

Defendant

Law Firm Uniform, Attorney Kim Yong-deok

Suwon District Court Decision 2015No2272 Decided November 17, 2015

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

Judgment ex officio is made.

1. In cases where the evaluation of acts deemed a crime committed in the past according to the changes in the legal ideology, which served as the reason for the enactment of penal statutes, has changed and punished them as a crime, in itself, or where statutes were amended or amended in light of anti-discrimination that there was an excessive punishment, the new law shall be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

2. A. According to the reasoning of the lower judgment, the lower court convicted all of the charges by applying Article 2(1)2 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”), Article 324 of the Criminal Act, Article 2(1)1 of the former Punishment of Violences Act, Article 283(1)1 of the Criminal Act, Article 283(1) of the Criminal Act, Article 2(1)1 of the former Punishment of Violences Act, Article 2(1)1 of the former Punishment of Violences Act, and Article 260(1) of the Criminal Act to habitual assault.

B. Article 2(1) of the former Punishment of Violences Act provides that “A person who habitually commits any of the following crimes shall be punished in accordance with the following classification: (a) Article 324(a) of the Criminal Act provides that a person who habitually commits the following crimes shall be punished by imprisonment for a fixed term of not less than two years; (b) Article 283(1)(a) of the Criminal Act and Article 260(1)(b) of the Criminal Act shall be punished by imprisonment for a fixed term of not less than one year. However, Article 2(1) of the Punishment of Violences, etc. Act, amended and enforced by Act No. 13718, Jan. 6, 2016, was deleted.

As can be seen, deletion of Article 2(1) of the former Punishment of Violences Act, which provides for each aggravated constituent element of Article 324 (Coercive tion), Article 285, Article 283(1) (Habitual Intimidation), Article 264, and Article 260(1) (Habitual Violence) of the Criminal Act, is an anti-sexual measure taken from the fact that the previous penal provision is too excessive. Thus, this constitutes “when a punishment is more severe than the previous penal provision due to a change in the law after the crime” under Article 1(2) of the Criminal Act.

Therefore, among the facts charged in this case, the punishment of habitual assault and habitual assault cannot be aggravated pursuant to Article 2(1) of the former Punishment of Violences Act, which is a juristic person, at the time of the act pursuant to Article 1(2) of the Criminal Act. Since the punishment can only be imposed pursuant to Articles 324(1), 285, 283(1)(Habitual Intimidation), 264, and 260(1)(Habitual Violence) of the Criminal Act, the judgment of the court below that applied the provisions of the former Punishment of Violences Act cannot no longer maintain.

C. Meanwhile, the lower court rendered a single sentence on the grounds that each of the above facts charged and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, should also reverse the remainder of the facts charged as well as each of the above facts charged.

3. Therefore, without further proceeding to decide on the grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)