2015Do19095 Violation of the Punishment of Violences, etc. Act (injury by Group, Deadly Weapons, etc.);

Fraud

A

Defendant

Attorney M (Korean National Assembly)

Daegu District Court Decision 2015No3537, 2015No637 decided November 20, 2015

February 18, 2016

Of the judgment below, the part of the violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, etc.) is reversed.

This part of the case is remanded to the Daegu District Court Panel Division.

The remaining appeals are dismissed.

1. An office in violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, etc.) in the lower judgment;

judgment of competence,

(1) The act of having committed a crime in the past according to the change of the legal ideology which was the basis of the enactment of penal law

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

section 1(2) of the Criminal Act is amended or amended in the reflective consideration that punishment is excessive.

Pursuant to the foregoing, new law shall apply (Supreme Court Decisions 2009Do12930 Decided March 11, 2010; 2009Do12930 Decided March 11, 201

See Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013

(2) According to the reasoning of the lower judgment, the lower court: (a) dangerous articles among the facts charged in the instant case.

Punishment of Violence, etc. Act concerning the act of inflicting an injury on a victim by carrying himself/herself

The former Punishment of Violences Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter referred to as "former Punishment of Violences Act")

In applying Articles 3(1) and 2(1)3 of this Act, Article 257(1) of the Criminal Act, the judgment of conviction shall be rendered.

had been.

(3) Article 3(1) of the former Punishment of Violences Act provides that “Any organization or group by force or by force or by force.”

A person who commits any of the crimes referred to in the subparagraphs of Article 2(1) by referring to the power of a group; or

A person who commits a crime by carrying a deadly weapon or other dangerous article shall be punished by the formula set forth in the subparagraphs of Article 2 (1).

A person who habitually commits any of the following crimes shall be punished in accordance with the Act, and Article 2 (1) of the Act shall apply to such person:

A person who has committed any of the following offenses shall be punished in accordance with Article 257 of the Criminal Act:

Paragraph (1) (Bodily Injury) and Article 257 (2) (Bodily Injury) of the Criminal Act shall be punished by imprisonment for a definite term of not less than three years.

Provided, however, the punishment of violence, etc., which was amended and enforced by Act No. 13718 on January 6, 2016

Article 3(1) of the Act on the Law of the Republic of Korea is deleted, and the Criminal Code amended and enforced by Act No. 13719 on the same day.

Article 258-2 (Special Bodily Injury) is newly established and "a threat of collective or multiple force" in paragraph (1) shall show the power of collective or multiple persons.

When a person commits a crime under Article 257 (1) or (2) by carrying any dangerous or dangerous goods, he/she shall be subject to one year.

It stipulated that "A person shall be punished by imprisonment with prison labor for not more than ten years."

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

Article 258-2(1) of the Criminal Act, instead of deleting Article 3(1) of the Punishment Act, means the above elements of a crime.

Newly inserted that the statutory penalty is lower than that of Article 3(1) of the former Punishment of Violences Act, the above provision is applicable.

Even if general risk of elements of heavy constituent elements is considered, the commission of an individual crime

The above, even though the specific form of action and the degree of infringement of legal interest are very diverse, it is not less than 3 years uniformly.

the previous loan regulations are too excessive, provided that the punishment shall be aggravated by imprisonment;

Since it should be viewed as an appropriate measure, it is by a change of law after a crime under Article 1 (2) of the Criminal Code.

Punishment is more severe than that of the former Act (Supreme Court Decision 2015Do17907 Decided January 28, 2016).

§ 6).

Thus, among the facts charged of this case, the defendant's personal injury is inflicted on the victim.

In accordance with Article 1 (2) of the Criminal Act, the provisions of the former Punishment of Violences Act, a corporation at the time of an act

Since it is not possible to punish an aggravated punishment, it can only be punished under Article 258-2 (1) of the Criminal Code, a new corporation.

The application of the former Punishment of Violences Act to the judgment below is no longer possible.

(c)

2. Judgment on the ground of appeal on the part of fraud in the judgment below

According to Article 383 subparagraph 4 of the Criminal Procedure Act, death penalty, imprisonment with or without prison labor for life or for not less than ten years.

An appeal on the grounds of unfair sentencing shall be allowed only in the case on which the court rendered a ruling.

In this case where minor punishment was pronounced, the argument that the amount of punishment is inappropriate is legitimate.

shall not be effective.

3. Conclusion

Therefore, among the judgment below, the violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.)

Without examining the grounds of appeal on the grounds of appeal, the Punishment of Violences, etc. Act of the lower judgment

The part half (injury by Group, Deadly Weapons, etc.) shall be reversed, and the court below's decision shall be made to re-examine and determine this part of the case.

The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

shall be determined as above.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Lee Dong-hee, Justice Cho Jong-hee

Justices Park Sang-ok