2015Do11943 A. Violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)

Intimidation)

(b) Injury;

(c) Interference with business;

(d) Damage to property;

A

Defendant

Attorney Q Q (Korean Office Line)

Suwon District Court Decision 2015Ma447 decided July 17, 2015

October 29, 2015

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

1. The grounds for final appeal asserted by the non-pharmaceutical appellant are erroneous in the judgment of the court below on the grounds of unfair sentencing, but this does not constitute a legitimate ground for final appeal.

2. The decision shall be made ex officio;

The lower court convicted the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act with regard to intimidation to carry dangerous articles among the facts charged in the instant case.

However, on September 24, 2015, 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 a deadly weapon or other dangerous articles with a deadly weapon or other dangerous articles" (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015) applied by the lower court following the decision of unconstitutionality (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015). Accordingly, the said legal provision was retroactively invalidated pursuant to the main sentence of Article 47 (3

The Defendant’s case prosecuted by applying the pertinent statutory provision constitutes a crime not committed (see, e.g., Supreme Court Decision 2005Do8317, Jun. 6, 2007). As such, the lower judgment convicting this part of the facts charged was no longer maintained.

3. Therefore, the part of the judgment of the court below regarding the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) should be reversed. Since the remaining crimes which the court below found guilty and concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes, the judgment of the court below is reversed in its entirety and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition

Justices Park Young-young

Justices Kim Yong-deok

Justices Kim Jae-han

Chief Justice Kim Jong-il