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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
Reasons
1. The following facts are acknowledged according to the progress records of the case.
① On October 8, 2015, the lower court found the Defendant guilty of charges against the Defendant and sentenced the Defendant to ten months of imprisonment, and applied Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Act”) and Article 257(1) of the Criminal Act (hereinafter “instant provision”).
② On October 15, 2015, a prosecutor appealed the lower judgment on the grounds that the sentencing was unfair, and the lower judgment was reversed on the grounds that the judgment was modified (wholly amended in the facts charged) on December 3, 2015, and sentenced the Defendant to ten months.
③ On December 9, 2015, the Defendant filed a final appeal against the judgment of the lower court before remanding the case on the grounds of unfair sentencing. On March 10, 2016, the final appeal court dismissed the instant provision upon the amendment by Act No. 13718, Jan. 6, 2016. On the same day, Article 258-2 (Special Bodily Injury) newly established under the Criminal Act amended by Act No. 13719 of the same day prescribed the elements identical to the instant provision, and even if the statutory penalty was set lower, it should be deemed that the previous penal provision was an anti-sexual measure taken from the fact that the previous penal provision was excessive. As such, Article 258-2 (1) of the Criminal Act, a new criminal sentence had not been imposed pursuant to Article 1(2) of the Criminal Act, should be applied.
The judgment of the court before the remand was reversed, and the case was remanded to the court of the first instance.
2. The decision of the court below on the gist of the grounds for appeal (one hundred months of imprisonment) is too unhued and unreasonable.
3. Prior to the judgment on the grounds for appeal by the prosecutor ex officio, the Prosecutor’s name of the crime against the Defendant in the trial of the party, “Violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)” was “special injury” and the corresponding applicable legal provision “Article 3(1) and 2(1)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act” was “Article 258-2 of the Criminal Act.